Banking and Finance Law Commons^™

Foreign Investments And The Market For Law, Susan Franck

Scholarly Articles in Law Reviews & Journals

In this Article, Professors O'Hara O'Connor and Franck adapt and extend Larry Ribstein's positive framework for analyzing the role of jurisdictional competition in the law market. Specifically, the authors provide an institutional framework focused on interest group representation that can be used to balance the tensions underlying foreign investment law, including the desire to compete to attract investments and countervailing preferences to retain domestic policy-making discretion. The framework has implications for the respective roles of BITs and investment contracts as well as the inclusion and interpretation of various foreign investment provisions.

The Icc's Exit Problem, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

The International Criminal Court (ICC) was never meant to supplant the domestic prosecution of international crimes. And yet the Court is now entering its second decade of operations in four African nations, with no plan for exit in sight. This Article identifies the looming need for the ICC to consider when and how to exit situations in which it is currently active. In addition to the normative concern that a failure to start planning for exit undercuts the Court’s placement within a system of complementarity, the need to consider exit is also driven by a financial imperative. The Court’s caseload …

Is Financial Instability A Tax Problem With A Tax Solution?, Hilary Allen

Scholarly Articles in Law Reviews & Journals

Financial regulation and taxation are two fields of law that are notoriously complex and specialized. Given this circumstance, it is perhaps not surprising that financial regulators often pay little attention to tax, and focus instead on their own sphere of influence. Unfortunately, financial regulators ignore tax incentives at the peril of financial stability.

Let's Talk About Tax, Hilary Allen

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Civil Liability Theories For Insufficient Security Authentication In Online Banking, Paul Rice

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Basel's Gone Cold On Cocos, But Is This A Blessing In Disguise For Banks?, Hilary Allen

Scholarly Articles in Law Reviews & Journals

The last few months have seen a dramatic fall in the value of bank stocks both in Europe and the U.S., bringing back unpleasant memories of the depths of the financial crisis in 2008. Concerns about the sovereign debt crisis in Europe, continuing litigation relating to the American subprime mortgage crisis, and the generally poor state of the world economy have increasingly put banks under pressure. However, some commentators have pointed out the “silver lining” in all of this: the big American and European banks are better capitalized than they were during the financial crisis, and therefore are better able …

Consumer Financial Protection: It's A Smaller World After All.Pdf, Hilary Allen

Scholarly Articles in Law Reviews & Journals

Few of the reforms of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) have been as controversial as the creation of the Consumer Financial Protection Bureau. On the one hand, proponents envisioned the Bureau as “a single, highly motivated federal regulator, [that would apply] the same regulation … to all similar products, regardless of the identity of the lender.” On the other hand, critics have called the Bureau “fatally flawed” and suggested that it has the potential to “stifle innovation and leave some market participants worse off.”

Sovereignty, Accountability, And The Wealth Fund Governance Conundrum, Anna Gelpern

Scholarly Articles in Law Reviews & Journals

Sovereign wealth funds – state-controlled transnational portfolio investment vehicles – began as an externally imposed category in search of a definition. SWFs from different countries had little in common and no particular desire to collaborate. But SWFs as a group implicated the triple challenge of securing cooperation between deficit and surplus states, designing a legal framework for global capital flows, and integrating state actors in the transnational marketplace. This Article describes how an apparently artificial grouping of investors, made salient by the historical and political circumstances of their host states in the mid-2000s, became a vehicle for addressing some of …

Public Participation And The Private Sector: The Role Of Multilateral Development Banks In The Evolution Of International Legal Standards, Daniel D. Bradlow, Megan S. Chapman

Scholarly Articles in Law Reviews & Journals

This paper systematically describes the public participation standards currently applied by multilateral development banks (MDBs) to the private sector and seeks to identify emerging trends and areas for further development or improvement. It begins by outlining the developing body of international law on public participation and its relationship to good development practice. Thereafter, the paper describes the two principle models for standards attached to MDB funding and assistance to the private sector: (1) the World Bank policies applicable to the public sector; and (2) the International Finance Corporation (IFC) standards that are applicable to the private sector and how these …

Securitization And Suburbia, Heather Hughes

Scholarly Articles in Law Reviews & Journals

This Article explores the relationship between one typical form of real estate development finance-the securitized mezzanine loanand one controversial phenomenon-suburban sprawl. It asks foundational questions about the connection between financial transactions and real-world applications of the capital they raise. In this work, sprawl serves as an example of an environmental consequence of applications of capital raised with a common form of transaction. This Article considers the extent to which commercial finance laws release forceful incentives driven by capital markets upon land use decisions, potentially undermining the collective, morally informed determination such decisions require. It rejects the aesthetic aversion to looking …

Money Market Fund Reform Viewed Through A Systemic Risk Lens, Hilary J. Allen

Scholarly Articles in Law Reviews & Journals

I. INTRODUCTION

Money market funds ("MMFs") were first developed in the 1970s, and since that time, they have become increasingly popular as an alternative to deposit accounts. Since the financial crisis of September 2008, there has been much discussion about the systemic risks posed by alternatives to commercial banking products. One of the key themes of this discussion is whether the systemic importance of these alternative banking products justifies the imposition of heightened regulation and supervision. This article takes the view, after a comparison of deposit accounts and MMFs, that MMFs are systemically important. It then goes on to consider, …

Empirical Modalities: Lessons For The Future Of International Investment, Susan Franck

Scholarly Articles in Law Reviews & Journals

Empirical approaches add value to international investment law and aid in its evolution. Nevertheless, we must "fit the forum to the fuss." When transforming international law, we select proper methodologies for specific research questions and make international law empiricism part of a larger post-structuralist, pluralist legal dialogue. In connection with that, my remarks first place empirical research on international investment in a historical context. I then discuss where the research is today and offer an example of how empirical methods can be used to understand, reassess, and possibly transform international investment law and related institutions. Finally, I consider the future …

The Impact Of The Financial Crisis On Trade And Investment, Padideh Ala'i

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Enabling Investment In Environmental Sustainability, Heather Hughes

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Financial Crisis Containment, Anna Gelpern

Scholarly Articles in Law Reviews & Journals

This Article maps financial crisis containment - extraordinary measures to stop the spread of financial distress - as a category of legal and policy choice. I make three claims.

First, containment is distinct from financial regulation, crisis prevention and resolution. Containment is brief; it targets the immediate term. It involves claims of emergency, rule-breaking, time inconsistency and moral hazard. In contrast, regulation, prevention and resolution seek to establish sound incentives for the long term. Second, containment decisions deviate from non-crisis norms in predictable ways, and are consistent across diverse countries and crises. Containment invariably entails three kinds of choices: choices …

Narrowing The Accountability Gap: Toward A New Foreign Investor Accountability Mechanism, David Hunter, Natalie L. Bridgeman

Scholarly Articles in Law Reviews & Journals

An ever-increasing number of standards, guidelines, principles, norms, and best practices have been adopted to address the environmental and social impacts of multinational enterprises (MNEs). This increase in standards and norms corresponds to a rise in MNE sensitivity to the environmental and social impacts that their activities have on local communities in developing countries. These standards and norms are considered voluntary by definition because they are typically not state-sponsored or the product of public regulation. They fill a normative gap located between the state-centered focus of international law and the often inadequate or unenforced standards of the developing country hosts …

Domestic Bonds, Credit Derivatives, And The Next Transformation Of Sovereign Debt, Anna Gelpern

Scholarly Articles in Law Reviews & Journals

Not long ago, financial markets in most poor and middle-income countries were shallow to nonexistent, and closed to foreigners. Governments often had to rely on risky borrowing abroad; the private sector had even fewer options. But between 1995 and 2005, domestic debt in the emerging markets grew from $1 trillion to $4 trillion. In Mexico, domestic debt went from just over 20% of the total government debt stock in 1995 to nearly 80% in 2007. Foreign and local investors are buying. Over the same period, derivative contracts to transfer emerging market credit risk surpassed the market capitalization of the benchmark …

Immigrant Remittances, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

Remittances, the sending of money from immigrants back to their home countries, are the newest anti-poverty, development activity of the poor to be applauded by international institutions and economists. Exceeding foreign aid and private investment to many developing countries, remittances are being hailed as a new, untapped resource with powerful poverty alleviation and potential development attributes. After presenting the poverty, developmental, and economic characteristics of this new transnational connection between immigrants and their loved ones, as well as the dangerous effects of excessive remittance regulation, the author argues that remittances should be understood as an anti-poverty tool, but not as …

Civil Society Networks And The Development Of Environmental Standards At International Financial Institutions, David Hunter

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Wal-Mart Bank In Mexico: Money To The Masses And The Home-Host Hole, Anna Gelpern

Scholarly Articles in Law Reviews & Journals

In November 2006 Wal-Mart's Mexican subsidiary received approval to open a bank. The application faced little opposition in Mexico, unlike the company's failed effort to start a bank in the United States. This was partly because in Mexico, Wal-Mart's entry was generally regarded as increasing competition in a historically concentrated banking sector. With over three-quarters of all Mexicans unbanked, the authorities also looked to Wal-Mart to reach the underserved. Along with the promise, Wal-Mart's entry presents a transnational regulatory dilemma with implications beyond Wal-Mart and Mexico. Because it is Wal-Mart's only banking venture, the new institution will have its Mexican …

Training Law Students To Be International Transactional Lawyers - Using An Extended Simulation To Educate Law Students About Business Transactions, Daniel D. Bradlow, Jay Finkelstein

Scholarly Articles in Law Reviews & Journals

The article describes an innovative approach to educating law students about the legal issues and the role of lawyers in negotiating international business transactions. It is based on our experiences in developing and teaching a course that is built around a semester-long simulation exercise and taught in counterpart classes at two law schools. The students in these classes represent the opposing parties and negotiate a cross-border business transaction involving a joint venture agreement, a licensing agreement and a long-term supply contract. The students, who attend either the American University Washington College of Law or the Centre for Energy Mineral and …

Private Finance, Social Responsibility, And Transitional Justice: The Case For South African Reconciliation And Development Bonds, Daniel D. Bradlow

Scholarly Articles in Law Reviews & Journals

No abstract provided.

An Empirical Analysis Of Investment Treaty Awards, Susan Franck

Scholarly Articles in Law Reviews & Journals

I. INTRODUCTION

Earlier speakers offered insights about investment law and its implications for the future of domestic administrative law and international law. To bring us full circle, I will discuss where we are today so that we can consider where we want development law to be tomorrow. In pursuit of that goal, I offer empirical data related to investment treaty arbitration. My goal today is to focus on three claims about investment treaty arbitration and consider the data's potential implications.

Inter-American System, Claudia Martin

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Private Complainants And International Organizations: A Comparative Study Of The Independent Inspection Mechanisms In International Financial Institutions, Daniel D. Bradlow

Scholarly Articles in Law Reviews & Journals

This paper is a comparative study of the independent inspection mechanisms in international financial institutions. These mechanisms, which are an important development in the accountability of international organizations, allow private complainants who believe that they have been harmed or threatened with harm by the failure of these institutions to act in accordance with their own operational rules and procedures to have their complaints investigated by an independent body.

The paper is divided into three parts. In the first part I discuss the structure, functions and procedures of the World Bank's Inspection Panel, the International Finance Corporation's Compliance Advisor Ombudsman, the …

Creditors' Imagined Communities And The Unfettered Expansion Of Secured Lending, Heather Hughes

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Development Decision Making And The Content Of International Development Law, Daniel D. Bradlow

Scholarly Articles in Law Reviews & Journals

International development law deals with the rights and duties of states and other actors in the development process. As the consensus view of the development process disintegrated during the 1970s and 1980s, the agreement on the content of international development law also began to break down. Today there are two competing idealized views of development. The first, the traditional view, maintains that development is about economic growth, which can be distinguished from other social, cultural, environmental, and political development issues in society. The second, the modern view, maintains that development is an integrated process of change involving intertwined economic, social, …

Using The World Bank Inspection Panel To Defend The Interests Of Project-Affected People, David Hunter

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Microcredit: Fulfilling Or Belying The Universalist Morality Of Globalizing Markets, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Lessons From The Ngo Campaign Against The Second Review Of The World Bank Inspection Panel: A Participant's Perspective, Daniel D. Bradlow

Scholarly Articles in Law Reviews & Journals

No abstract provided.