{"title":"The Value of Insolvency Safe Harbours","authors":"P. Paech","doi":"10.2139/ssrn.2578521","DOIUrl":"https://doi.org/10.2139/ssrn.2578521","url":null,"abstract":"‘Safe harbour’ is shorthand for a bundle of privileges in insolvency which are typically afforded to financial institutions. They are remotely comparable to security interests as they provide a financial institution with a considerably better position as compared to other creditors should one of its counterparties fail or become insolvent. Safe harbours have been introduced widely and continue to be introduced in financial markets. The common rationale for such safe harbours is that the protection against the fallout of the counterparty’s insolvency contributes to systemic stability, as the feared ‘domino effect’ of insolvencies is not triggered from the outset. However, safe harbours are also criticised for accelerating contagion in the financial market in times of crisis and making the market more risky. This paper submits that the more important argument for the existence of safe harbours is liquidity in the financial market. Safe harbour rules do away with a number of legal concepts, notably those attached to traditional security, and thereby allow for an exponentiation of liquidity. Normative decisions of the legislator sanction safe harbours as modern markets could not exist without these high levels of liquidity. To the extent that safe harbours accelerate contagion in terms of crisis, which in principle is a valid argument, specific regulation is well suited to correct this situation, whereas a repeal or significant restriction of the safe harbours would be counterproductive.","PeriodicalId":117557,"journal":{"name":"LSE Legal Studies Working Paper Series","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116089038","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Governing 'As If': Global Subsidies Regulation and the Benchmark Problem","authors":"A. Lang","doi":"10.2139/SSRN.2432642","DOIUrl":"https://doi.org/10.2139/SSRN.2432642","url":null,"abstract":"As a result of the extraordinary work of Foucault, Shapin and Schaffer, Porter, and many others, we are familiar with many of the practices of governance which emerged during the 19th century at the intersection of the modern social sciences and the modern state, as ‘naturalized’ knowledge of an objectified social body formed the foundation of specific kinds of social and political order. But over the course of the 20th century, critiques of objectivity have become commonplace, and a post-positivist epistemological revolution has taken root in many quarters. How, then, have practices of governance-through-knowledge modified themselves in response to a century of such critiques? This article takes inspiration from the work of Jasanoff, Riles, Latour and others to identify a mode of ‘governing as if’: a pragmatic mode of governance which works not through the production of objective knowledge as the shared epistemic foundation for political settlements, but rather by generating knowledge claims that stabilize social orderings precisely through their self-conscious partiality, contingency, and context-dependence. This argument is developed using the illustration of global subsidies regulation in World Trade Organization law, focussing in particular on the knowledge practices by which particular conceptions of ‘the market’ are produced and deployed in the course of its operation. The article argues that the standard criticisms of naturalized economic conceptions of the ‘free market’, developed in various scholarly traditions throughout the 20th century, do not provide an adequate account of economic governance working in ‘as if’ mode, either positively or normatively. It further argues, following Riles, that such regimes of governance derive their effectiveness fundamentally from their ‘hollow core’, and that it is in the constant and active work of ‘hollowing out’ that we are likely to find their characteristic modalities of power and underlying structural dynamics.","PeriodicalId":117557,"journal":{"name":"LSE Legal Studies Working Paper Series","volume":"69 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116599059","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Bureaucratic 'Criminal' Law: Too Much of a Bad Thing?","authors":"Jeremy Horder","doi":"10.2139/SSRN.2335976","DOIUrl":"https://doi.org/10.2139/SSRN.2335976","url":null,"abstract":"My main aim is to argue for the legitimacy of ‘regulatory’ criminal law. Historically more significant as a feature of statecraft than its critics have been prepared to admit, I defend a number of the controversial characteristics of such law. Such features include its tendency to come in the form of numerous discrete offences (where the common law was satisfied with one or two general offences), its preoccupation with less ‘serious’ forms of wrongdoing, and its reliance on omission-based liability. The plausibility of these claims comes through shifting the focus away from the favoured moral high ground of traditional critics of bureaucratic criminal law: the interests and concerns of the individual, as the object of criminalisation. A very large proportion of bureaucratic criminal law is aimed at companies, as objects of criminalisation. Whilst companies must be dealt with in a fair and proportionate manner by the criminal law, as entities they lack the capacity for emotional suffering, dignity and autonomy that would otherwise place greater constraints on the scope for the criminalisation of their activities. In developing my views, I try to maintain a healthy scepticism about the viability of identifying a set of laws that are uniquely and distinctively ‘criminal’.","PeriodicalId":117557,"journal":{"name":"LSE Legal Studies Working Paper Series","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-02-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133177135","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Reason of State: Whose Reason? Which Reason?","authors":"T. Poole","doi":"10.2139/SSRN.2204587","DOIUrl":"https://doi.org/10.2139/SSRN.2204587","url":null,"abstract":"Since we tend to think of the state as a construct of law, how is it possible for a category of state action to exist somehow outside or beyond the law? Using the term ‘reason of state’ to specify this special category, the paper asks two more specific questions. When someone talks about reason of state, whose reason and which reason do they mean? Two attempts are made to answer the first question. One attempt seeks inspiration from early-modern state theory. The second looks to 18th century ‘jealousy of trade’ politics, particularly the sovereign claims of the East India Company. The second question is addressed tentatively, the paper suggesting (i) that reason of state may be seen as the mirror-image of Coke’s defence of the common law as artificial reason and (ii) that the basic structure of reason of state may be identified as semi-secret, based in reason allied to experience, offering guiding intelligence, and sovereign in a ‘soft’ sense.","PeriodicalId":117557,"journal":{"name":"LSE Legal Studies Working Paper Series","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-01-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122538870","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Tax Disputes Under Institutional Instability: Theory and Implications","authors":"Eduardo A. Baistrocchi","doi":"10.1111/J.1468-2230.2012.00914.X","DOIUrl":"https://doi.org/10.1111/J.1468-2230.2012.00914.X","url":null,"abstract":"This article aims to offer the first structural analysis of tax disputes under institutional instability using a core element of the international tax regime as an example. It offers a theory grounded on Mancur Olson's seminal contribution to group dynamics, the logic of collective action. It also suggests implications of this theory that might help to address key enforcement issues faced by the international tax regime in a frequent context worldwide: institutionally unstable countries.","PeriodicalId":117557,"journal":{"name":"LSE Legal Studies Working Paper Series","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130313622","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Path of Fiduciary Law","authors":"D. Kershaw","doi":"10.2139/SSRN.1874763","DOIUrl":"https://doi.org/10.2139/SSRN.1874763","url":null,"abstract":"Contemporary accounts of corporate legal evolution view lawmakers as highly responsive to the economic interests of both pressure groups and markets. Through this lens law is understood to be the product of pressures exerted by managers, investors, institutional shareholders and the Federal Government, and the incentives of state lawmakers to accommodate the interests of these pressure groups. This lens dominates our current understanding of corporate legal evolution in the United States and is becoming highly influential in comparative accounts of corporate legal variation. This article sounds a note of objection. The article argues that the disciplinary pendulum has swung too far toward external accounts of legal evolution and too far away from internal accounts of legal change which view the path of law, at least in part, as the product of the internally generated constraints of the legal system – the relative autonomy of the law. To make this argument, the article considers the internal constraint of the conception of the corporation in 19th century US and UK corporate law and the evolution of self-dealing law in these two jurisdictions. It shows how two jurisdictions that started from the same legal proposition about self-dealing diverged rapidly as a result of the interaction of this proposition with profoundly different conceptions of the corporation. Contrary to the dominant account of the evolution of self-dealing law in the United States, the contemporary self-dealing rule is not the legally unexplained product of external market pressures but the logical and consistent product of the path of fiduciary law trodden through the corporate conception. The article shows that for contemporary corporate law a significant dose of inevitability was administered at the inception of general incorporation.","PeriodicalId":117557,"journal":{"name":"LSE Legal Studies Working Paper Series","volume":"77 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115363294","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Confronting Confrontation","authors":"Mike Redmayne","doi":"10.2139/ssrn.1616200","DOIUrl":"https://doi.org/10.2139/ssrn.1616200","url":null,"abstract":"The right to confront adverse witnesses has brought the English courts into conflict with the European Court of Human Rights. Drawing on confrontation doctrine in Europe and the United States, this paper argues that there is no convincing rationale for the sort of strong confrontation right found under the ECHR and the US constitution. A more pragmatic approach to confrontation, based on the best evidence principle, is advocated.","PeriodicalId":117557,"journal":{"name":"LSE Legal Studies Working Paper Series","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133636620","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Increasing Returns in the Patent System: Institutional Sources and Consequences for Law","authors":"S. Thambisetty","doi":"10.2139/ssrn.1344761","DOIUrl":"https://doi.org/10.2139/ssrn.1344761","url":null,"abstract":"This paper critically analyses the impact of the institutional set up of UK and US patent systems on the optimality of patent law. Based on recent work on institutionalism, the author argues that the patent system is subject to increasing returns processes or positive feedback, where the probability of further steps along a given legal sequence increases with each move down that path. In an analysis that puts temporality at the heart of the argument, this paper shows how the interactions between key institutions in the patent system can result in doctrinal incoherence. Prominent sources of increasing returns in the patent system are inter-institutional linkages, legal authority exercised by prominent institutions and the intrinsic and extrinsic uncertainty associated with patents. The inadequacy of corrective mechanisms intensifies increasing returns. In such circumstances even early or tentative commitments made to policies and legal standards become tenacious while the costs of policy reversal grow and grow and become prohibitive. The result is a legal system plagued by the possibility of bizarre and unpredictable outcomes.","PeriodicalId":117557,"journal":{"name":"LSE Legal Studies Working Paper Series","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-02-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130587638","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"International Economic Governance and Human Rights Accountability","authors":"M. Salomon","doi":"10.2139/SSRN.1013505","DOIUrl":"https://doi.org/10.2139/SSRN.1013505","url":null,"abstract":"The focus on development and poverty reduction by the World Bank and the International Monetary Fund has increased the scope, and opportunity, for these influential international financial institutions to consider the human rights implications of their policy-based operations. Some notable advances have been made, such as greater attention by the Bank to the links between securing human rights and economic growth. Still, the negative impact these institutions themselves may have on the exercise of basic socio-economic rights by people in borrowing countries, due to the particular policies they pursue, has not been acknowledged. Given the functioning of international economic governance today it is necessary to consider the human rights accountability, not just of the developing states, but of international actors that influence the direction of their social and economic policies.","PeriodicalId":117557,"journal":{"name":"LSE Legal Studies Working Paper Series","volume":"440 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123615357","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Legal Protection for Foreign Investors in Kazakhstan","authors":"Dariga Tokpayeva","doi":"10.2139/ssrn.2737943","DOIUrl":"https://doi.org/10.2139/ssrn.2737943","url":null,"abstract":"This paper aims to analyze the legal protections in place in Kazakhstan for foreign investors. The analysis is based on the index described in the article by Shleifer and Vishny, 1997; La Porta, Lopez-de-Silanes, Shleifer, and Vishny, 1997, 1998; Shleifer and Wolfenzon, 2002 (La Porta table). In the La Porta article, the authors created an index to measure legal protection for investors via the use of complex statistics. The study, through its metrics, found that countries with a common-law system have better protections than countries with a civil-law system. The assessment of investor legal protection in a particular country is based on records of the following indexes: “Anti-Director Rights Index” (ADRI), creditor rights, shareholders rights, legal enforcement and ownership.Kazakhstan has a civil-law system of law. To evaluate shareholders legal protection in Kazakhstan, we collected all necessary legal data. This legal data was then converted to index measures using detailed norms of legislation. In cases when the data is not easily accessible or additional payments are needed, we used other reasonable information to ensure consistency.In order to analyze legal protection in Kazakhstan, we plan to discuss all of the La Porta table’s positions. We will prove that even though Kazakhstan has a civil system of law; the country has one of the highest scores in ADRI, creditor and shareholder rights indexes. But because of Kazakhstan’s level of corruption, the score on the legal enforcement index needs to be improved.","PeriodicalId":117557,"journal":{"name":"LSE Legal Studies Working Paper Series","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122761959","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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