Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- International Law (6)
- Dispute Resolution and Arbitration (5)
- International Trade Law (5)
- Energy and Utilities Law (4)
- Environmental Law (4)
-
- Law and Economics (4)
- Transnational Law (3)
- Banking and Finance Law (2)
- Comparative and Foreign Law (2)
- Courts (2)
- Securities Law (2)
- Antitrust and Trade Regulation (1)
- Business Organizations Law (1)
- Contracts (1)
- Intellectual Property Law (1)
- Judges (1)
- Jurisprudence (1)
- Law and Politics (1)
- Legal Ethics and Professional Responsibility (1)
- Litigation (1)
- Institution
Articles 1 - 20 of 20
Full-Text Articles in Law
Obsolescence: The Intractable Production Problem In Contract Law, Alan Schwartz, Robert E. Scott
Obsolescence: The Intractable Production Problem In Contract Law, Alan Schwartz, Robert E. Scott
Faculty Scholarship
Contract law has long suffered from an institutional problem: Which legal institution can best create an efficient law for commercial contracts that can overcome "obsolescence” – the persistence of rules that only solve yesterday’s contracting problems? Until the early 20th century, contract law was largely created by common law courts. The law's default rules were efficient when created and courts updated them as commerce changed. But there were few rules and the common law process is slow. In response, the 20th century saw public and private lawmaking bodies enact commercial statutes in discrete legal areas such as secured credit, commercial …
Rethinking "Political" Considerations In Investment, David H. Webber
Rethinking "Political" Considerations In Investment, David H. Webber
Faculty Scholarship
Five years ago, Professor David H. Webber was invited to deliver an address both to our Delaware Law School community and to the Delaware Bench and Bar as Visiting Scholar in Residence of Corporate and Business Law. Webber's Speech, "Rethinking 'Political' Considerations in Investment," made several predictions about the rise of politicized investment which were quite prescient. As relevant today as when it was delivered, this piece explores the consideration of investment factors outside the traditional realm of shareholder profit maximization, both in its current state and in the future. Webber's analysis of how investors balance the role of capital …
Externalities And The Common Owner, Madison Condon
Externalities And The Common Owner, Madison Condon
Faculty Scholarship
Due to the embrace of modern portfolio theory, most of the stock market is controlled by institutional investors holding broadly diversified economy-mirroring portfolios. Recent scholarship has revealed the anti-competitive incentives that arise when a firm’s largest shareholders own similarly sized stakes in the firm’s industry competitors. This Article expands the consideration of the effects of common ownership from the industry level to the market-portfolio level, and argues that diversified investors should rationally be motivated to internalize intra-portfolio negative externalities. This portfolio perspective can explain the increasing climate change related activism of institutional investors, who have applied coordinated shareholder power to …
Insulating A Wto Investment Facilitation Framework From Isds, George A. Bermann, N. Jansen Calamita, Manjiao Chi, Karl P. Sauvant
Insulating A Wto Investment Facilitation Framework From Isds, George A. Bermann, N. Jansen Calamita, Manjiao Chi, Karl P. Sauvant
Faculty Scholarship
The authors identify several ways in which a WTO investment facilitation framework for development can be insulated from investor-state dispute settlement provisions in international investment agreements, and suggest specific formulations in this respect.
To Ab Or Not To Ab?: Dispute Settlement In Wto Reform, Bernard M. Hoekman, Petros C. Mavroidis
To Ab Or Not To Ab?: Dispute Settlement In Wto Reform, Bernard M. Hoekman, Petros C. Mavroidis
Faculty Scholarship
Recent debates on the operation of the WTO’s dispute resolution mechanism have focused primarily on the Appellate Body (AB). We argue that this neglects the first-order issue confronting the rules-based trading system: sustaining the principle of de-politicized conflict resolution that is reflected in the negative consensus rule for adoption of dispute settlement findings. Improving the quality of the work of panels by appointing a roster of full-time professional adjudicators, complemented by reforms to WTO working practices that reduce incentives to resort to formal dispute settlement, can resolve the main issues that led to the AB crisis. Effective, coherent, and consistent …
Stakeholder Preferences And Priorities For The Next Wto Director General, Matteo Fiorini, Bernard Hoekman, Petros C. Mavroidis, Douglas Nelson, Robert Wolfe
Stakeholder Preferences And Priorities For The Next Wto Director General, Matteo Fiorini, Bernard Hoekman, Petros C. Mavroidis, Douglas Nelson, Robert Wolfe
Faculty Scholarship
The WTO is looking for a new Director-General (DG). What does the trade community think is needed? This paper reports on the results of an expert survey undertaken as part of a research project on global trade governance at the European University Institute to solicit views on what WTO members and the international trade community consider the most important attributes of candidates for the position, as well as views on the substantive policy and institutional reform priorities confronting the WTO – and thus the new DG. The results suggest strong support for someone with managerial and political experience, and a …
Expectations As Property: Histories, Contexualizations, Critiques, Freya Irani, Katharina Pistor
Expectations As Property: Histories, Contexualizations, Critiques, Freya Irani, Katharina Pistor
Faculty Scholarship
The last four decades have seen an enormous expansion in the number of international investment treaties (particularly bilateral investment treaties) and in investment treaty-based arbitrations and awards. Traditionally made between capital-exporters and capital-importing states (that is, along a North-South axis), such treaties generally assure investors of one signatory state (the "home state") protection on the basis of pre-determined standards in the other signatory state or states (the "host state"). Such treaties also provide for compensation in case of breaches of these standards, and give investors recourse to arbitration in case of disputes. Given these provisions alongside arbitral treaties themselves, in …
Impact Investing As A Form Of Lobbying And Its Corporate-Governance Effects, Andrzej Rapaczynski
Impact Investing As A Form Of Lobbying And Its Corporate-Governance Effects, Andrzej Rapaczynski
Faculty Scholarship
Impact investment is attractive to many because it seems to combine support for progressive causes with an apparent commitment to the principles of a market economy. In fact, however, a rational impact investor is not simply creating demand for certain types of corporate actions; he/she is attempting to use corporate governance mechanisms to influence fiduciary decisions of the management. The cost of this tactic for the health of the capitalist economy is potentially very considerable. The American capitalist system relies heavily on a relatively fragile corporate governance arrangement in which the agency problems of a modern corporation are minimized by …
Harmonizing Third-Party Litigation Funding Regulation, Victoria Sahani
Harmonizing Third-Party Litigation Funding Regulation, Victoria Sahani
Faculty Scholarship
Third-party litigation funding is no longer a new phenomenon, but rather is a mainstay in global commerce and dispute resolution. Yet many observers still consider the third-party litigation funding industry as a “wild west” due to a lack of regulation in many countries. Some of the countries that have regulations suffer from a lack of uniformity and an array of conflicting laws at the sub-national level (i.e., the laws of states, provinces, territories, etc.). For example, the United States has a confusing patchwork of state laws on third-party litigation funding. This Article proposes harmonizing the regulatory framework for third-party litigation …
Justifying India's Patent Position To The United States International Trade Commission And Office Of The United States Trade Representative, Srividhya Ragavan, Sean Flynn, Brook Baker
Justifying India's Patent Position To The United States International Trade Commission And Office Of The United States Trade Representative, Srividhya Ragavan, Sean Flynn, Brook Baker
Faculty Scholarship
The paper below largely is an extract of the testimonial filed by the authors to the Secretary of the ITC in response to the Notice on the Federal Register dated August 29, 2013 titled Trade, Investment, and Industrial Policies in India: Effects on the U.S. Economy. Where required, the paper also draws from the written submissions that the authors made to the United States Trade Representative’s (hereinafter, USTR) office on the related question of whether India deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property …
The Integration Of Environmental Law Into International Investment Treaties And Trade Agreements: Negotiation Process And The Legalization Of Commitments, Madison Condon
Faculty Scholarship
There were seventeen international investment agreements (“IIAs”) signed around the world in 2012, and each one of them contained some provision relating to the protection of the environment. In comparison, no investment treaty signed before 1985, and fewer than ten percent of treaties signed between 1985 and 2001, contained any reference to the environment at all. Environmental language has become increasingly common in bilateral investment treaties (“BITs”), and to an even greater degree in other IIAs, such as free trade agreements (“FTAs”). The legal implications of the integration of environmental law and norms into investment law treaties have yet to …
Beyond Tax Credits: Smarter Tax Policy For A Cleaner, More Democratic Energy Future, Felix Mormann
Beyond Tax Credits: Smarter Tax Policy For A Cleaner, More Democratic Energy Future, Felix Mormann
Faculty Scholarship
Solar, wind, and other renewable energy technologies have the potential to mitigate climate change, secure America’s energy independence, and create millions of green jobs. In the absence of a price on carbon emissions, however, these long-term benefits will not be realized without near-term policy support for renewables. This Article assesses the efficiency of federal tax incentives for renewables and proposes policy reform to more cost-effectively promote renewable energy through capital markets and crowdfunding.
Federal support for renewable energy projects today comes primarily in the form of tax incentives such as accelerated depreciation and, critically, tax credits. Empirical evidence reveals that …
Convention Violations And Investment Claims, William W. Park
Convention Violations And Investment Claims, William W. Park
Faculty Scholarship
In theory, treaty commitments remain a foundation of international law, often expressed in the adage pacta sunt servanda: ‘agreements are to be kept’.1 In practice, however, some treaty violations remain without realistic sanctions. Here as elsewhere, the divergence between theory and practice remains greater in practice than in theory.
Smarter Finance For Cleaner Energy: Open Up Master Limited Partnerships (Mlps) And Real Estate Investment Trusts (Reits) To Renewable Energy Investment, Felix Mormann, Dan Reicher
Smarter Finance For Cleaner Energy: Open Up Master Limited Partnerships (Mlps) And Real Estate Investment Trusts (Reits) To Renewable Energy Investment, Felix Mormann, Dan Reicher
Faculty Scholarship
This policy proposal makes the case for opening Master Limited Partnerships (MLPs) and Real Estate Investment Trusts (REITs) — both well-established investment structures — to renewable energy investment. MLPs and, more recently, REITs have a proven track record for promoting oil, gas, and other traditional energy sources. When extended to renewable energy projects these tools will help promote growth, move renewables closer to subsidy independence, and vastly broaden the base of investors in America’s energy economy.
Enhancing The Investor Appeal Of Renewable Energy, Felix Mormann
Enhancing The Investor Appeal Of Renewable Energy, Felix Mormann
Faculty Scholarship
This article introduces an investor-oriented framework for the evaluation of renewable energy policy, applies these newly developed criteria to a qualitative comparison of the primary policy instruments, and offers recommendations to enhance the investor appeal of renewable energy in the United States.
The multi-trillion dollar task of scaling renewable energy technologies to mitigate climate change, ensure energy security, and create green jobs is one of the most daunting challenges of the twenty-first century. It is, in fact, too great a challenge for either the public or private sector to shoulder alone. Rather, public policy must catalyze private investment in renewable …
Becoming "Investor-State Mediation", Nancy A. Welsh, Andrea Kupfer Schneider
Becoming "Investor-State Mediation", Nancy A. Welsh, Andrea Kupfer Schneider
Faculty Scholarship
While the current system of investment treaty arbitration has definitely improved upon the “gunboat diplomacy” used at times to address disputes between states and foreign investors, there are signs that reform is needed. Increasingly, states and investors express concerns regarding the costs associated with the arbitration process; some states are refusing to comply with arbitral awards; other states now hesitate to sign new bilateral investment treaties; and citizens have begun to engage in popular unrest at the prospect of investment treaty arbitration. As a result, both investors and states are advocating for the use of mediation to supplement investor-state arbitration. …
China In Africa: What The Policy Of Nonintervention Adds To The Western Development Dilemma, Madison Condon
China In Africa: What The Policy Of Nonintervention Adds To The Western Development Dilemma, Madison Condon
Faculty Scholarship
Chinese investment activity in Africa has skyrocketed in recent years, outpacing every other nation except South Africa. China finances more infrastructure projects in Africa than the World Bank and provides billions of dollars in low-interest loans to the continent’s emerging economies. These loans and investments are typically made in exchange for securing access to natural resources. Based on its principles of nonintervention and respect for sovereignty, China gives this money with little or no strings attached. The West, which typically conditions its loans on initiatives like democracy promotion and corruption reduction, has labeled China a “rogue donor,” whose actions will …
Harmonizing Climate Change Policy And International Investment Law: Threats, Challenges And Opportunities, Daniel M. Firger, Michael Gerrard
Harmonizing Climate Change Policy And International Investment Law: Threats, Challenges And Opportunities, Daniel M. Firger, Michael Gerrard
Faculty Scholarship
This chapter responds to a chorus of commentary about the potential for conflict between the international investment law regime and an array of national and international actions being undertaken to mitigate and adapt to global climate change. Contrary to conventional wisdom, while some climate-friendly regulations may indeed be facially incompatible with the obligations imposed on states by typical international investment agreements (IIAs), many climate policies – especially those related to clean energy finance and technology transfer – involve principles common to foreign investment law and are largely compatible with that regime. Moreover, pending the unlikely negotiation of a single global …
Between Dialogue And Decree: International Review Of National Courts, Robert B. Ahdieh
Between Dialogue And Decree: International Review Of National Courts, Robert B. Ahdieh
Faculty Scholarship
Recent years have seen dramatic growth in the number of international tribunals at work across the globe, from the Appellate Body of the World Trade Organization and the International Tribunal for the Law of the Sea, to the Claims Resolution Tribunal for Dormant Claims in Switzerland and the International Criminal Court. With this development has come both increased opportunity for interaction between national and international courts and increased occasion for conflict. Such friction was evident in the recent decision in Loewen Group, Inc. v. United States, in which an arbitral panel constituted under the North American Free Trade Agreement found …
Arbitration And The Fisc: Nafta's Tax Veto, William W. Park
Arbitration And The Fisc: Nafta's Tax Veto, William W. Park
Faculty Scholarship
Taxes, said Franklin Roosevelt, "are the dues that we pay for the privileges of membership in an organized society." Harsher tongues describe tax as a form of property seizure. Somewhere between these competing characterizations of revenue raising-club dues and forced takings-lies a clue to why the North American Free Trade Agreement ("NAFTA") reserves special treatment for investment disputes implicating fiscal matters. NAFTA gives foreign investors a right to settle investment disputes by arbitration, a process more politically and procedurally neutral than either host state courts or foreign gunboats. Without the option to arbitrate, the specter of unfair expropriation might chill …