Regulatory efforts in the United States and European Union have recently refocused on materiality, an essential but elusive securities law concept. The renewed focus is due in part to increasing globalization of capital markets, data, and information channels that has highlighted inconsistencies in theory and application. In the United States, the Supreme Court has loosely defined materiality through a line of cases beginning with TSC Industries v. Northway and Basic, Inc. v. Levinson, whose reasonable investor rubric is frequently disregarded by lower courts, prosecutors, and the Securities and Exchange Commission. Meanwhile, in the E.U., courts have only lightly addressed materiality. Scholars in law and behavioral economics have criticized the TSC-Basic rubric for its ambiguity, unpredictability, and disconnection from market psychology. Recognizing these criticisms, this Article conducts an international comparative investigation of materiality in the legislation, regulation, and case law of the United States and European Union, revealing a shared, probabilistic Bayesian infrastructure. The Article then proposes a flexible Bayesian framework that harmonizes the substantive evaluation of materiality under existing U.S. and E.U. law. Finally, it models application of the framework using Bayesian network analysis in the context of a hypothetical stock transaction. Download [650.04...
56 Colum. J. Transnat’l L. 70.
Could a Code of Conduct Work? The Prospects of the French Proposal Limiting the Veto on the United Nations Security CouncilBy: Merrow Golden
During the opening session of the Sixty-Eighth United Nations General Assembly in 2013, President François Hollande of France proposed that the permanent members of the Security Council should agree to “renounce their veto powers” in situations of mass atrocities. Two years later, President Hollande went one step further and officially committed France to this voluntary “code of conduct.” Proposals to reform the Security Council veto have existed ever since the United Nations began in 1945, but could this code of conduct work? And, if so, how? This paper assesses the “French Proposal” and its prospects for success. It does so by examining the legal framework surrounding the veto power and why previous attempts to reform the veto have failed. It then considers how the French Proposal might be different, highlighting more recent changes that have occurred in the wider political context. Finally, the paper considers how the proposal might work in practice and, more importantly, which aspects need to be further defined. Download [171.53...
This Article examines a previously overlooked policy interdependence between the International Monetary Fund (“IMF”) and the Basel Committee on Banking Supervision (“Basel Committee”), which results from economic dynamics associated with the “banking- sovereign nexus.” The main finding of this Article is that interventions by the IMF and the Basel Committee function as regulatory complements by subtly reinforcing one another through a number of channels. In order to leverage that complementarity, the Article presents the following two-part policy proposal. First, that the Basel Committee enhance the stringency of its capital requirements with an increase in the risk-weights that are assigned to sovereign bonds that banks hold as assets. Second, that the IMF revise its lending criteria to allow countries that have effectively implemented the stricter version of the Basel Rules to prequalify for access to its credit facilities.
Access to Trade Secret Environmental Information: Are TRIPS and TRIPS-Plus Obligations a Hidden Landmine?By: Dalindyebo Bafana Shabalala
Freedom of Information laws (“FOI laws”) are fundamental to enabling access to environmental information. This Article argues that the specificity and strength of trade secret protections in TRIPS (article 39) and TRIPS-Plus regional and bilateral free trade agreements (“FTAs”) are hidden landmines that may unravel current access-to- information regimes (e.g. FOI laws). The aim of this Article is to delineate the nature and scope of the limits that TRIPS and TRIPS-Plus regimes place on domestic access-to-environmental-information regimes for information submitted to governments.
The bilateral investment treaties (“BITs”) signed between developed and developing countries are supposed to increase the flow of investment from the former to the latter. But the evidence indicates that the existing approach of guaranteeing special protections for foreign investors has only a modest impact on luring their dollars. This Article calls for a fundamental redesign of BITs based on empirically validated premises about how host States actually attract foreign investment. Political science and economic studies show that foreign investors place substantial weight on the quality of domestic institutions. Existing BITs fail to promote investment because they are not an adequate substitute for these institutions, nor are they effective in generating reform. The proposed model would make domestic institutional reform the organizing principle of BIT design, and the Article offers several specific provisions that would help achieve that goal.
The substantive law of judgments recognition in the United States has evolved from federal common law, found in a seminal Supreme Court opinion, to primary reliance on state law in both state and federal courts. While state law often is found in a local version of a uniform act, this has not brought about true uniformity, and significant discrepancies exist among the states. These discrepancies in judgments recognition law, combined with a common policy on the circulation of internal judgments under the United States Constitution’s Full Faith and Credit Clause, have created opportunities for forum shopping and litigation strategies that result in both inequity of result and inefficiency of judicial process. These inefficiencies are fueled by differences regarding (1) substantive rules regarding the recognition of judgments, (2) requirements for personal and quasi in rem jurisdiction when a judgment recognition action is brought (recognition jurisdiction) and (3) the application of the doctrine of forum non conveniens in judgments (and arbitral award) recognition cases. Recent cases demonstrate the need for a return to a single, federal legal framework for the recognition and enforcement of foreign judgments.
The Outer Limits of Adequate Reparations for Breaches of Non-Expropriation Investment Treaty Provisions: Choice and Proportionality in ChorzòwBy: Diane A. Desierto
Is compensations always the appropriate form of reparations when States breach non-expropriation provisions of their investment treaties? If so, what is the authoritative methodology for determining the quantum of compensation, when the non-expropriation investment treaty standard breached is silent on the issue of compensation for these kinds of treaty breaches?
Beyond States and Non-State Actors: The Role of State-Empowered Entities in the Making and Shaping of International LawBy: Sandesh Sivakumaran
Traditionally, the actors in the international legal system are divided into States and non-state actors; and States are considered to be the ones that make and shape international law. By contrast, this Article argues that there is a third category of actors, namely state-empowered entities, which have been empowered by States to make and shape international law. These entities are not States, but due to their empowerment by States, they are also not non-state actors. Accordingly, they constitute a category in and of themselves.
This Article explores the undertheorized and understudied phenomenon of doubly uncooperative federalism. While most commentary examining the behavior of U.S. states with respect to treaty regimes focuses on cooperative behavior—that is, states that aid in the implementation of duly ratified treaties, or even aid in the implementation of treaties that the federal government has yet to ratify—this Article focuses on settings of doubly uncooperative federalism.