Law and Economics Commons^™

Pledging, Populism, And The Paris Agreement: The Paradox Of A Management-Based Approach To Global Governance, Cary Coglianese

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For many observers, the Paris Agreement signaled a historic breakthrough in addressing the problem of global warming. In its basic design, however, the Agreement is far from novel. Its dependence on each nation’s self-determined pledge to reduce greenhouse gases mirrors the domestic policy strategy called management-based regulation—a flexible regulatory approach that has been used to address problems as varied as food safety and toxic air pollution. In this article, I connect insights from research on management-based regulation to the international governance of climate change. Unfortunately, management-based regulation’s track-record at the domestic level gives little reason to expect that the Paris …

Immovable-Associated Equipment Under The Draft Mac Protocol: A Sui Generis Challenge For The Cape Town Convention, Benjamin Von Bodungen, Charles W. Mooney Jr.

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UNIDROIT is in the process of adopting a fourth Protocol under the umbrella of the Cape Town Convention, the MAC Protocol, which will cover mining, agricultural and construction equipment. This article addresses a challenge faced by the MAC Protocol that was not encountered in the development of the previous Protocols - the potential for MAC equipment to be associated with immovable property in ways that result in the holder of an interest in the immovable property acquiring an interest in the associated MAC equipment under the law of the State in which the immovable property is located. The article first …

A No-Tribunal Sdrm And The Means Of Binding Creditors To The Terms Of A Restructuring Plan, Charles W. Mooney Jr.

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The paper addresses two discrete but related and essential attributes of a sovereign debt restructuring mechanism (SDRM). It first considers the merits and feasibility of an SDRM that would provide a procedure for proposing and adopting a restructuring plan for a sovereign debtor’s debt which would not involve any tribunal or administrator (a No-Tribunal SDRM). The No-Tribunal SDRM would undertake the restructuring as if the sovereign debtor and its creditors were subject to the Model CAC regime. In addition to embodying a novel and interesting structure for an SDRM—and one that eliminates the difficult hurdle of identifying a satisfactory tribunal—adoption …

A Framework For A Formal Sovereign Debt Restructuring Mechanism: The Kiss Principle (Keep It Simple, Stupid) And Other Guiding Principles, Charles W. Mooney Jr.

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Given the ongoing work on a multilateral restructuring process for sovereign debt in the UN, consideration of the content and implementation of a sovereign debt restructuring mechanism (SDRM) is timely. The framework and content of the SDRM proposed here differs from earlier proposals in several important respects. For the classification and supermajority voting of claims in the approval a restructuring plan, it would mimic the structure and operation of the model collective action clauses (Model CACs) proposed by the International Capital Markets Association. Restructuring under a qualified sovereign debt restructuring law (QSDRL) would be guided by four principles: (i) observe …

The Cape Town Convention’S Improbable-But-Possible Progeny Part Two: Bilateral Investment Treaty-Like Enforcement Mechanism, Charles W. Mooney Jr.

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This Essay is Part Two of a two-part essay series that outlines and evaluates two possible future international instruments. Each instrument draws substantial inspiration from the Cape Town Convention and its Aircraft Protocol (together, the “Convention”). The Convention governs the secured financing and leasing of large commercial aircraft, aircraft engines, and helicopters. It entered into force in 2006. It has been adopted by sixty-six Contracting States (fifty-eight of which have adopted the Aircraft Protocol), including the U.S., China, the E.U., India, Ireland, Luxembourg, Russia, and South Africa.

This Part of the Essay explores whether an investor-state dispute settlement (ISDS) feature …

Harmonizing Choice-Of-Law Rules For International Insolvency Cases: Virtual Territoriality, Virtual Universalism, And The Problem Of Local Interests, Charles W. Mooney Jr.

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This paper explores the potential content and feasibility of a set of harmonized choice of law rules (HICOL Rules) that would apply in insolvency proceedings. It contemplates a main insolvency proceeding opened in a debtor’s center of main interests (“COMI”) and the existence of (or possibility of opening) one or more non-main (or secondary) proceedings. It also contemplates the possibility that an insolvency representative in a main or non-main proceeding may seek and be granted recognition in another state under the UNCITRAL Model Law on Cross-Border Insolvency (codified as Chapter 15 of the Bankruptcy Code in the U.S.) Under HICOL …

The Cape Town Convention’S Improbable-But-Possible Progeny Part One: An International Secured Transactions Registry Of General Application, Charles W. Mooney Jr.

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This essay is Part One of a two-part essay series. It outlines and evaluates two possible future international instruments. Each instrument draws substantial inspiration from the Cape Town Convention and its Aircraft Protocol (together, the “Convention”). The Convention governs the secured financing and leasing of large commercial aircraft, aircraft engines, and helicopters. It entered into force in 2006. It has been adopted by sixty Contracting States (fifty-four of which have adopted the Aircraft Protocol), including the U.S., China, the E.U., India, Ireland, Luxembourg, Russia, and South Africa.

A novel, distinctive, and path-breaking feature of the Convention is the international registry …

Consumer Choice As The Best Way To Describe The Goals Of Competition Law, Robert H. Lande

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This article is both a short introduction to the Consumer Choice explanation for Competition Law or Antitrust Law, and also a short advocacy piece suggesting that Consumer Choice is the best way to articulate the goals of European Competition Law and United States Antitrust Law.

This article briefly:

1. defines the consumer choice approach to antitrust or competition law and shows how it differs from other approaches;
2. shows that the antitrust statutes and theories of violation embody a concern for optimal levels of consumer choice;
3. shows that the United States antitrust case law embodies a concern for optimal levels of consumer …

International Civil Litigation In U.S. Courts: Becoming A Paper Tiger?, Stephen B. Burbank

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No abstract provided.

Problems Of Equity And Efficiency In The Design Of International Greenhouse Gas Cap-And-Trade Schemes, Jason S. Johnston

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This article argues that international greenhouse gas (GHG) cap-and-trade schemes suffer from inherent problems of enforceability and verifiability that both cause significant inefficiencies and create inevitable tradeoffs between equity and efficiency. A standard result in the economic analysis of international GHG cap and trade schemes is that an allocation of initial permits that favors poor, developing countries (making such countries net sellers in equilibrium) may be necessary not only to further redistributive goals but also the efficiency of the GHG cap and trade scheme. This coincidence of equity and efficiency is, however, unlikely to be realized under more realistic assumptions …

Treatment Differences And Political Realities In The Gaap-Ifrs Debate, William W. Bratton, Lawrence A. Cunningham

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No abstract provided.

The Argentine Financial Crisis: State Liability Under Bits And The Legitimacy Of The Icsid System, William W. Burke-White

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This essay examines the jurisprudence of the International Center for the Settlement of Investment Disputes (ICSID) arbitral tribunals in a series of cases brought against the Republic of Argentina in the wake of the 2001-2002 Argentine financial collapse. The essay considers the ICSID tribunals' treatment of non-precluded measures provisions in Argentina's bilateral investment treaties (BITs) and the customary law defense of necessity and argues that the ICSID tribunals have sought to radically narrow the opportunities available to states to craft policy responses to emergency situations while strengthening investor protections beyond the intent of the states parties to the BITs under …

Human Freedom And Two Friedmen: Musings On The Implications Of Globalization For The Effective Regulation Of Corporate Behavior, Leo E. Strine Jr.

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In this essay, which was delivered as the Torys Lecture at the University of Toronto, Vice Chancellor Strine considers the implications of globalization for the effective regulation of corporate behavior affecting interests other than those of stockholders against the backdrop of the West’s political and economic experience. He concludes that consistent with prior experience, the globalization of corporate markets will require a corresponding expansion of the polity to protect those aspects of human freedom that are affected in important ways by corporate behavior. As a practical matter, this means that if the U.S. and other Western nations wish to limit …

Competing For Capital: The Diffusion Of Bilateral Investment Treaties, 1960-2000, Zachary Elkins, Andrew T. Guzman, Beth A. Simmons

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Over the past forty-five years, bilateral investment treaties (BITs) have become the most important international legal mechanism for the encouragement and governance of foreign direct investment. Their proliferation over the past two decades in particular has been phenomenal. These intergovernmental treaties typically grant extensive rights to foreign investors, including protection of contractual rights and the right to international arbitration in the event of an investment dispute. How can we explain the diffusion of BITs? We argue that the spread of BITs is driven by international competition among potential host countries - typically developing countries - for foreign direct investment. We …

Bribes V. Bombs: A Study In Coasean Warfare, Gideon Parchomovsky, Peter Siegelman

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The use of bribes to co-opt an enemy’s forces can be a more effective way to wage war than the conventional use of force: Relative to bombs, bribes can save lives and resources, and preserve civic institutions. This essay evaluates the efficacy and normative desirability of selectively substituting bribes for bombs as a means of warfare. We show how inter-country disparities in wealth, differences in military strength, the organization of the bribing and recipient forces, uncertainty about the outcome of the conflict, and communications technology can contribute to the efficacy of bribes. We discuss methods for enforcing bargains struck between …

Redesigning The International Lender Of Last Resort, Patrick Bolton, David A. Skeel Jr.

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No abstract provided.

Environmental Trade Measures, The Shrimp-Turtle Rulings, And The Ordinary Meaning Of The Text Of The Gatt, Howard F. Chang

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No abstract provided.

Pari Passu And A Distressed Sovereign's Rational Choices, William W. Bratton

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No abstract provided.

Vultures Or Vanguards?: The Role Of Litigation In Sovereign Debt Restructuring, Jill E. Fisch, Caroline M. Gentile

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The market for sovereign debt differs from the market for corporate debt in several important ways including the risk of opportunistic default by sovereign debtors, the importance of political pressures, and the presence of international development organizations. Moreover, countries are subject to neither liquidation nor standardized processes of debt reorganization. Instead, negotiations between a sovereign debtor and its creditors lead to a voluntary restructuring of the sovereign's debt. One of the greatest difficulties in restructuring claims against sovereign debtors is balancing the interests of the majority of the creditors with those of minority creditors. Holdout creditors serve as a check …

Inside The Black Box: How Should A Sovereign Bankruptcy Regime Be Structured?, Patrick Bolton, David A. Skeel Jr.

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No abstract provided.

Can Majority Voting Provisions Do It All?, David A. Skeel Jr.

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No abstract provided.

Human Rights, Civil Wrongs And Foreign Relations: A "Sinical" Look At The Use Of U.S. Litigation To Address Human Rights Abuses Abroad, Jacques Delisle

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No abstract provided.

Rules Of Transnational Civil Procedure, Geoffrey C. Hazard Jr., Michele Taruffo, Rolf Sturner, Anthony Gidi

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No abstract provided.

Fundamental Principles Of Transnational Civil Procedure, Geoffrey C. Hazard Jr., Rolf Sturner, Michele Taruffo, Anthony Gidi

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No abstract provided.

The United States' Approach To International Civil Litigation: Recent Developments In Forum Selection, Stephen B. Burbank

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No abstract provided.

The Implications Of The New Regime For Global Competition Policy: Intellectual Property Rights, Economic Power, And Global Technological Integration, David J. Gerber

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No abstract provided.

An Economic Analysis Of Trade Measures To Protect The Global Environment, Howard F. Chang

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In this article, Professor Howard Chang addresses the role of trade restrictions in supporting policies to protect the global environment and proposes a more liberal treatment of these environmental trade measures than that adopted by dispute-settlement panels of the General Agreement on Tariffs and Trade (GATT). The GATT Secretariat has recommended that countries like the United States rely on "carrots" rather than "sticks" in order to induce the participation of other countries in multilateral environmental agreements. Professor Chang defends the use of sticks on the ground that they encourage more restrained exploitation of the environment pending a multilateral agreement. First, …

Imprudent Power: Reconsidering U.S. Regulation Of Foreign Tender Offers, Jill E. Fisch

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No abstract provided.

The World In Our Courts, Stephen B. Burbank

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No abstract provided.

More Lessons From Japan: End Industrywide Collective Bargaining?, Robert H. Lande, Richard O. Zerbe Jr.

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The number of books and articles discussing Japanese management techniques with an eye to transplanting them to the United States is staggering. Americans understandably are impressed by Japanese efficiency and like to think the adoption of some of their techniques will aid our own industries. Often these proposals seem fanciful and fail to recognize the many differences between the two countries, their economic systems and cultures.