Is The Independent Director Model Broken?,
2014
Seattle University School of Law
Is The Independent Director Model Broken?, Roberta S. Karmel
Seattle University Law Review
At common law, an interested director was barred from participating in corporate decisions in which he had an interest, and therefore “dis-interested” directors became desirable. This concept of the disinterested director developed into the model of an “independent director” and was advocated by the Securities and Exchange Commission and court decisions as a general ideal in a variety of situations. This Article explores doubts regarding the model of an “independent director” and suggests that director expertise may be more important that director independence. The Article then discusses shareholder primacy and sets forth alternatives to the shareholder primacy theory of the …
Culture Wars: Rate Manipulation, Institutional Corruption, And The Lost Normative Foundations Of Market Conduct Regulation,
2014
Seattle University School of Law
Culture Wars: Rate Manipulation, Institutional Corruption, And The Lost Normative Foundations Of Market Conduct Regulation, Justin O'Brien
Seattle University Law Review
The global investigations into the manipulation of the London Interbank Offered Rate (Libor) have raised significant questions about how conflicts of interest are managed for regulated entities contributing to benchmarks. An alternative framework, which brings the management of the rate process under direct regulatory supervision, is under consideration, coordinated by the International Organization of Securities Commissions taskforce. The articulation of global principles builds on a review commissioned by the British government that suggests rates calculated by submission can be reformed. This paper argues that this approach is predestined to fail, precisely because it ignores the lessons of history. In revisiting …
The New Policing Of Business Crime,
2014
Seattle University School of Law
The New Policing Of Business Crime, Rachel E. Barkow
Seattle University Law Review
The central goal of this Article is to describe the burgeoning turn to new policing techniques in the business crime context and to offer some initial thoughts on the promises and limits of the approach. Part II begins by explaining the traditional or “old policing” of business crime. After implementing an initial strategy that focused on pursuing individuals, the government turned its attention to the organizations where those individuals operated. It increased the sanctions for violators and sought to target companies in an effort to prompt them to adopt internal compliance pro-grams. The focus on company compliance programs was designed …
Australia’S Experience With Foreign Direct Investment By State Controlled Entities: A Move Towards Xenophobia Or Greater Openness?,
2014
Seattle University School of Law
Australia’S Experience With Foreign Direct Investment By State Controlled Entities: A Move Towards Xenophobia Or Greater Openness?, Greg Golding
Seattle University Law Review
Over the last few years, there has been considerable debate in Australia as to the appropriate regulation of foreign direct investment by entities affiliated with foreign governments. During that time, Australia has been a significant beneficiary of investment by sovereign wealth funds from many foreign jurisdictions, particularly by Chinese state owned enterprises. The Australian government, similar to governments of many developed Western countries, has struggled to properly calibrate its policy settings for regulating this type of investment activity. This Article considers the Australian regulatory regime and assesses Australia’s experience in regulating those investment flows during this period.
Are Defined Contribution Pension Plans Fit For Purpose In Retirement?,
2014
Seattle University School of Law
Are Defined Contribution Pension Plans Fit For Purpose In Retirement?, Jeremy R. Cooper
Seattle University Law Review
This Article considers the historical basis for the shift from defined benefit plans to defined contribution plans, the structural and practical shortcomings of defined contribution plans, alternate pension models, and adjustments to existing retirement plan models that may offer a degree of protection to plan contributors. Like the United States, Australia is now realizing the limitations of a defined contribution retirement system insofar as it relates the provision of reliable retirement income for a population with increasing life expectancy. Unlike defined contribution plans, defined benefit plans provide a benefit based typically on time served and a predetermined proportion of either …
Proposed Regulation A Amendments Implementing The Jobs Act: Please, Sec, Revise Your Proposed Amendments In Order To Promote Small Business Capital Formation,
2014
University of Kentucky College of Law
Proposed Regulation A Amendments Implementing The Jobs Act: Please, Sec, Revise Your Proposed Amendments In Order To Promote Small Business Capital Formation, Rutheford B. Campbell Jr.
Law Faculty Advocacy
The Jobs Act was enacted to promote efficient access to external capital by small businesses. Title IV of the Jobs Act raises the limit on the exemption from federal registration provided by Regulation A to $50 million and requires the SEC to enact enabling regulations. The Commission’s first iteration of its proposed Regulation A amendments implementing Title IV of the Jobs Act fails to offer small businesses efficient access to external capital. Principally, this is because the proposed Regulation A amendments: (1) fail to preempt state registration authority over small offerings by small businesses relying on the proposed Regulation A …
An Overview Of The Fannie And Freddie Conservatorship Litigation,
2014
Brooklyn Law School
An Overview Of The Fannie And Freddie Conservatorship Litigation, David J. Reiss
Faculty Scholarship
No abstract provided.
Regulatory Arbitrage, Extraterritorial Jurisdiction, And Dodd-Frank: The Implications Of Us Global Otc Derivative Regulation,
2014
University of Nevada, Las Vegas -- William S. Boyd School of Law
Regulatory Arbitrage, Extraterritorial Jurisdiction, And Dodd-Frank: The Implications Of Us Global Otc Derivative Regulation, Christian Johnson
Nevada Law Journal
No abstract provided.
Leveraging Mining Investments In Water Infrastructure For Broad Economic Development: Models, Opportunities And Challenges,
2014
Columbia Law School, Columbia Center on Sustainable Investment
Leveraging Mining Investments In Water Infrastructure For Broad Economic Development: Models, Opportunities And Challenges, Perrine Toledano, Clara Roorda
Columbia Center on Sustainable Investment Staff Publications
The initial phase of the Leveraging Mining-Related Infrastructure Investments for Development project consisted of a worldwide survey of regulatory, commercial and operating case studies of shared use of mining-related infrastructure. This Policy Paper delivers the findings for water infrastructure.
The Impact Of Investment Treaties On Governance Of Private Investment In Infrastructure,
2014
Columbia Law School, Columbia Center on Sustainable Investment
The Impact Of Investment Treaties On Governance Of Private Investment In Infrastructure, Lise Johnson
Columbia Center on Sustainable Investment Staff Publications
Governments are increasingly turning to the private sector to provide the capital, resources and/or know-how necessary for development and operation of infrastructure. In some cases, the involvement by the private sector will trigger coverage by an international investment treaty that overlies, and can override, the domestic law and contract that would otherwise be applicable to the project. This working paper discusses the circumstances affecting when an investment treaty will apply and also highlights some of the ways that investment treaties can impact governance of infrastructure development and operation. While focusing on the relationship between investment treaties and investments in infrastructure, …
A Framework To Approach Shared-Use Of Mining Related Infrastructure,
2014
Columbia Law School, Columbia Center on Sustainable Investment
A Framework To Approach Shared-Use Of Mining Related Infrastructure, Perrine Toledano, Sophie Thomashausen, Nicolas Maennling, Alpa Shah
Columbia Center on Sustainable Investment Staff Publications
In April 2013, CCSI was awarded a grant from the Australian Government to develop an economically, legally and operationally rational framework to enable shared use of mining-related infrastructure, including rail, ports, power, water, internet and telecommunications. The framework was obtained by distilling best practice principles from infrastructure developments around the world, guided by expert opinion. It has most recently been refined through in-depth case studies in Liberia, Sierra Leone, and Mozambique, although its principles aim to be of general relevance to all resource rich African countries. The report was finalized in March 2014.
The Responsibilities Of Lawyers For Their Clients Misstatements And Omissions To The Securities Market In Singapore,
2014
Singapore Management University
The Responsibilities Of Lawyers For Their Clients Misstatements And Omissions To The Securities Market In Singapore, Wai Yee Wan
Research Collection Yong Pung How School Of Law
This article examines the extent to which lawyers advising on the disclosure documents of their clients issued to the securities markets should be responsible for their clients’ disclosure failures. It identifies the following problems with the current framework. First, there is a lack of objective due diligence standards which lawyers are expected to meet when they are advising on public disclosure documents. Second, except for takeovers, lawyers are not subject to public enforcement actions even if they have not acted with due care and diligence in ensuring that their clients comply with their disclosure obligations. Third, private enforcement actions against …
Enforcement Of The Duties Of Directors By The Securities And Futures Investors Protection Center In Taiwan,
2014
Singapore Management University
Enforcement Of The Duties Of Directors By The Securities And Futures Investors Protection Center In Taiwan, Christopher C. H. Chen
Research Collection Yong Pung How School Of Law
The purpose of this article is to examine the role of the Securities and Futures Investors Protection Center (SFIPC) in Taiwan in enforcing the duties of directors. To help shareholders or investors pursue a director for breach of company law or securities regulations, Taiwan created the SFIPC, a charity sanctioned by statutes, to bring class action or direct legal action on behalf of minority shareholders or individual investors. By conducting an empirical survey of judgments from lawsuits involving the SFIPC since its creation, we found that the SFIPC is generally very active in enforcing securities regulations but far less active …
Marketing Of Investment Advisers To Public Pension Plans: Achieving Transparency Through Lobbying Regulations?,
2014
William & Mary Law School
Marketing Of Investment Advisers To Public Pension Plans: Achieving Transparency Through Lobbying Regulations?, Christina M. Sumpio
William & Mary Business Law Review
In the past decade, public pension plans and their outside investment advisers have been at the center of scandals involving bribery, blatant asset mismanagement, and widespread corruption. In response to this corruption, the U.S. Securities and Exchange Commission and many state legislatures have adopted laws addressing “pay-to-play,” the custom of making political contributions or other payments to state or local officials in return for an opportunity to “play”—invest the public pension fund money. This Note examines certain pay-to-play legislation enacted by state and local governments seeking to regulate investment advisers and public pension plans through the promulgation of lobbying regulations. …
Taking Stock: Insider And Outsider Trading By Congress,
2014
William & Mary Law School
Taking Stock: Insider And Outsider Trading By Congress, Jeanne L. Schroeder
William & Mary Business Law Review
Spring 2012 saw the enactment of the “Stop Trading on Congressional Knowledge Act of 2012” or “STOCK Act.” It supposedly repealed an exemption from the federal securities laws that made insider trading by members of Congress “totally legal.” As every securities lawyer knows, however, there never was such an exemption. Representatives and Senators have always been subject to the same rules as the rest of us. It is just that insider-trading law is so incoherent that legal scholars sharply disagreed as to when, or even if, trading by government officials on the basis of material nonpublic information gleaned from their …
Proposed Crowdfunding Regulations Under The Jobs Act: Please, Sec, Revise Your Proposed Regulations In Order To Promote Small Business Capital Formation,
2014
University of Kentucky College of Law
Proposed Crowdfunding Regulations Under The Jobs Act: Please, Sec, Revise Your Proposed Regulations In Order To Promote Small Business Capital Formation, Rutheford B. Campbell Jr.
Law Faculty Advocacy
The Jobs Act was enacted to promote efficient access to external capital by small businesses. Title III of the Jobs Act offers small businesses the chance of efficient financial intermediation through crowdfunding. The crowdfunding exemption is not self-executing but, instead, requires regulatory implementation by the SEC.
The Commission’s first iteration of its crowdfunding rules fails to offer small businesses efficient access to external capital. Principally, this is because the proposed crowdfunding rules: (1) require excessive disclosures, especially regarding smaller crowdfunding offerings; (2) fail to offer small businesses relying on the crowdfunding exemption two-way safe harbor integration protection; and (3) fail …
Banking And The Social Contract,
2014
University of Georgia Law School
Banking And The Social Contract, Mehrsa Baradaran
Notre Dame Law Review
This Article asserts that there are three major tenets of the social contract: (1) safety and soundness, (2) consumer protection, and (3) access to credit. Regulators can and should require banks to meet standards in these areas to benefit society even if these measures reasonably reduce bank profits. Implicit in the social contract is the idea that each party must give up something in the exchange. This Article provides policymakers not only the appropriate narrative and justifications needed to frame their regulatory philosophy, but it also provides important textual support from the most prominent acts of banking legislation to give …
Investment Treaties And Industrial Policy: Select Case Studies On State Liability For Efforts To Encourage, Shape And Regulate Economic Activities In Extractive Industries And Infrastructure,
2014
Columbia Law School, Columbia Center on Sustainable Investment
Investment Treaties And Industrial Policy: Select Case Studies On State Liability For Efforts To Encourage, Shape And Regulate Economic Activities In Extractive Industries And Infrastructure, Lise Johnson
Columbia Center on Sustainable Investment Staff Publications
This paper, prepared in connection with a February 2014 conference organized by the UN Economic Commission for Africa, discusses some of the implications that investment treaties have for investments in infrastructure and the extractive industries. It focuses on liability for government conduct (1) in connection with tenders and negotiations; (2) when responding to questions regarding the legality of the investment; (3) in using performance requirements to leverage benefits and capture spillovers from the investment; (4) changing the legal framework governing an investment in response to evolving needs, circumstances, and interests; (5) administering the investment; and (6) requesting, and responding to …
Taking Stock: Insider And Outsider Trading By Congress,
2014
Benjamin N. Cardozo School of Law
Taking Stock: Insider And Outsider Trading By Congress, Jeanne L. Schroeder
Articles
Spring 2012 saw the enactment of the "Stop Trading on Congressional Knowledge Act of 2012" or "STOCK Act." It supposedly repealed an exemption from the federal securities laws that made insider trading by members of Congress "totally legal." As every securities lawyer knows, however, there never was such an exemption. Representatives and Senators have always been subject to the same rules as the rest of us. It is just that insider-trading law is so incoherent that legal scholars sharply disagreed as to when, or even if trading by government officials on the basis of material nonpublic information gleaned from their …
Ceo & Employee Pay Discrepancy: How The Government's Policies Have Encouraged The Gap,
2014
Pepperdine University
Ceo & Employee Pay Discrepancy: How The Government's Policies Have Encouraged The Gap, David R. Meals
The Journal of Business, Entrepreneurship & the Law
This paper examines the role of the U.S. Government in the CEO versus worker pay gap, both in contributing to its creation and the ability to reverse it. To better understand this issue, this paper includes a survey of current U.S. and foreign CEO compensation practices, a survey of theories proposed to explain the divergence between U.S. and foreign CEO compensation, a review of the social and business impact of excessive CEO compensation, and identifies socioeconomic theories regarding the excessive CEO pay trend. This is followed by a review of the history of attempted solutions along with newly enacted and …
