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Devil In The Bidding Detail, Lisa E. Sachs, Jacky Mandelbaum, Perrine Toledano Sep 2012

Devil In The Bidding Detail, Lisa E. Sachs, Jacky Mandelbaum, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

In light of the recent boom in natural resource prices, India is one of them many countries facing heightened scrutiny of the allocation and terms of their resource deals. In India, that scrutiny has uncovered a multi-billion dollar controversy over coal block allocations that has gridlocked Parliament. More generally, citizens in resource-producing countries around the world are asking whether the public is getting a fair value for their countries resources, or whether investors and politicians are walking away with the prize. Finally, the important questions are being asked: how should resources be managed to ensure that they benefit the citizenry ...


Background Paper For Second Workshop On Contract Negotiation Support For Developing Host Countries, Vale Columbia Center On Sustainable International Investment, Humboldt-Viadrina School Of Governance Jul 2012

Background Paper For Second Workshop On Contract Negotiation Support For Developing Host Countries, Vale Columbia Center On Sustainable International Investment, Humboldt-Viadrina School Of Governance

Columbia Center on Sustainable Investment Staff Publications

The Columbia Center on Sustainable Investment (CCSI) and the Humboldt-Viadrina School of Governance (HSVG) have initiated a process to discuss the desirability and feasibility of mechanisms to provide negotiation support for developing host countries in their negotiations with major investors.

At a first workshop held in October 2011, participants agreed on the need for an expansion of support for developing countries in their contract negotiations.

A second workshop was held at Columbia University in July 2012 that undertook a gap analysis between the existing sources of support for developing countries in relation to complex contracts and the countries’ needs for ...


Paper On The Business Case For Transparency, Perrine Toledano Jun 2012

Paper On The Business Case For Transparency, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

CCSI strongly supports the transparency of contracts and tax flows. CCSI shares the belief of many stakeholders that transparency is essential to leverage extractive industries for sustainable development and is in the mutual interest of all stakeholders. However, some industry players continue to voice the concern that increased transparency would be harmful for their business. Therefore, CCSI is working to also establish the business case for transparency.

In one such case, some industry players have been lobbying against the regulations developed by the Security and Exchange Commission to implement the mandatory disclosure provisions of the Dodd Frank Wall Street Reform ...


A Precedent Built On Sand: Norcon V. Niagara Mohawk, Victor P. Goldberg Jan 2012

A Precedent Built On Sand: Norcon V. Niagara Mohawk, Victor P. Goldberg

Faculty Scholarship

Under the common law, a contracting party could only demand assurance of performance if the other party was insolvent. If a party had reasonable grounds for insecurity, the UCC §2-609 allowed it demand adequate assurance even if the counterparty were solvent. The Restatement (Second) adopted the same rule for non-goods. In NorCon v. Niagara Mohawk the New York court extended the adequate assurance doctrine for some non-goods contracts. Although the decision seems to imply that there is some relation between the NorCon facts and its conclusion as to the law, there is none. Relying primarily on material available to the ...


Law By Non Sequitur: Norcon V. Niagara Mohawk, Victor P. Goldberg Jan 2012

Law By Non Sequitur: Norcon V. Niagara Mohawk, Victor P. Goldberg

Faculty Scholarship

Under the common law, a contracting party could only demand assurance of performance if the other party was insolvent. If a party had reasonable grounds for insecurity, the UCC §2-609 allowed it demand adequate assurance even if the counterparty were solvent. The Restatement (Second) adopted the same rule for non-goods. In NorCon v. Niagara Mohawk the New York court extended the adequate assurance doctrine for some non-goods contracts. Although the decision seems to imply that there is some relation between the NorCon facts and its conclusion as to the law, there is none. Relying primarily on material available to the ...


Parallel Exclusion, C. Scott Hemphill, Tim Wu Jan 2012

Parallel Exclusion, C. Scott Hemphill, Tim Wu

Faculty Scholarship

Scholars and courts have long debated whether and when "parallel pricing" – adoption of the same price by every firm in a market – should be considered a violation of antitrust law. But there has been a comparative neglect of the importance of "parallel exclusion" – conduct, engaged in by multiple firms, that blocks or slows would-be market entrants. Parallel exclusion merits greater attention, for it can be far more harmful than parallel price elevation. Setting a high price leaves the field open for new entrants and may even attract them. In contrast, parallel action that excludes new entrants both facilitates price elevation ...


Contract And Innovation: The Limited Role Of Generalist Courts In The Evolution Of Novel Contractual Terms, Ronald J. Gilson, Charles F. Sabel, Robert E. Scott Jan 2012

Contract And Innovation: The Limited Role Of Generalist Courts In The Evolution Of Novel Contractual Terms, Ronald J. Gilson, Charles F. Sabel, Robert E. Scott

Faculty Scholarship

In developing a contractual response to changes in the economic environment, parties choose the method by which their innovation will be adapted to the particulars of their context. These choices are driven centrally by the thickness of the relevant market and the uncertainty related to that market. In turn, the parties’ choice of method will shape how generalist courts can best support the parties’ innovation and the novel regimes they envision. In this essay, we argue that contractual innovation does not comes to courts incrementally, but instead reaches the courts later in the innovation’s evolution and more fully fledged ...


Constraints On Private Benefits Of Control: Ex Ante Control Mechanisms Versus Ex Post Transaction Review, Ronald J. Gilson, Alan Schwartz Jan 2012

Constraints On Private Benefits Of Control: Ex Ante Control Mechanisms Versus Ex Post Transaction Review, Ronald J. Gilson, Alan Schwartz

Faculty Scholarship

We consider how the state should regulate the consumption of pecuniary private benefits of control by controlling shareholders. These benefits have efficient aspects: they compensate the controlling shareholder for monitoring managers and for investing effort to create and implement projects. Controlling shareholders, however, have incentives to consume excessive benefits. We argue here that ex post judicial review of controlled transactions is superior to ex ante restrictions on the creation of controlled structures: the latter form of regulation eliminates the efficiencies as well as the abuses of the controlled company form. We also argue that controlling shareholders should be permitted to ...


Marriage At The Crossroads: Law, Policy, And The Brave New World Of Twenty-First-Century Families, Marsha Garrison, Elizabeth S. Scott Jan 2012

Marriage At The Crossroads: Law, Policy, And The Brave New World Of Twenty-First-Century Families, Marsha Garrison, Elizabeth S. Scott

Faculty Scholarship

This post includes the table of contents, introduction and our comment as the editors of an interdisciplinary volume that explores the implications for law and policy of changes in marriage and family over the past half century. The volume includes chapters by leading social science researchers and family law scholars whose work focuses on these matters. The book captures the complexity of debates about the regulation of marriage and families and the best policy paths forward, through contributions by authors with widely varying perspectives. But it also aims to inform these debates by situating them in a framework grounded in ...


Corporate Control And Credible Commitment, Ronald J. Gilson, Alan Schwartz Jan 2012

Corporate Control And Credible Commitment, Ronald J. Gilson, Alan Schwartz

Faculty Scholarship

The separation of control and ownership – the ability of a small group effectively to control a company though holding a minority of its cash flow rights – is common throughout the world, but also is commonly decried. The control group, it is thought, will use its position to consume excessive amounts of project returns, and this injures minority shareholders in two ways: there is less money and the controllers are not maximizing firm value. To the contrary, we argue here that there is an optimal share of the firm that compensates the control group for monitoring managers and otherwise exerting effort ...