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Excessive Corporate Risk-Taking and the Decline of Personal Blame 企业过度冒险与个人指责的减少
LSN: Investment (Topic) Pub Date : 2015-12-13 DOI: 10.2139/SSRN.2553511
S. Schwarcz
{"title":"Excessive Corporate Risk-Taking and the Decline of Personal Blame","authors":"S. Schwarcz","doi":"10.2139/SSRN.2553511","DOIUrl":"https://doi.org/10.2139/SSRN.2553511","url":null,"abstract":"Government agencies and prosecutors are being criticized for seeking so few indictments against individuals in the wake of the 2008-09 financial crisis and its resulting banking failures. This article analyzes why — contrary to a longstanding historical trend — personal liability may be on the decline, and whether agencies and prosecutors should be doing more. The analysis confronts fundamental policy questions concerning changing corporate and social norms. The public and the media perceive the crisis’s harm as a “wrong” caused by excessive risk-taking. But that view can be too simplistic, ignoring the reality that firms must take greater risks to try to innovate and create value in the increasingly competitive and complex global economy. This article examines how law should control that risk-taking and internalize its costs without impeding broader economic progress, focusing on two key elements of that inquiry: the extent to which corporate risk-taking should be regarded as excessive, and the extent to which personal liability should be used to control that excessive risk-taking.","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128833438","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}
引用次数: 13
Comparing Investment Provisions in India's FTAs with India's Stand-Alone Bits: Contributing to the Evolution of New Indian Bit Practice 比较印度自由贸易协定与印度独立比特的投资规定:促进印度新比特实践的演变
LSN: Investment (Topic) Pub Date : 2015-11-05 DOI: 10.1163/22119000-01606005
Prabhash Ranjan
{"title":"Comparing Investment Provisions in India's FTAs with India's Stand-Alone Bits: Contributing to the Evolution of New Indian Bit Practice","authors":"Prabhash Ranjan","doi":"10.1163/22119000-01606005","DOIUrl":"https://doi.org/10.1163/22119000-01606005","url":null,"abstract":"Rising investment treaty arbitration claims against India have resulted in India taking first steps towards a new investment treaty practice. This article argues that this practice should aim at reconciling investment protection with investment regulation. By comparing the formulation of key jurisdictional and substantive provisions in India’s stand-alone bilateral investment treaties (BITs) with those in investment chapters in India’s free trade agreements (FTAs), this article shows that formulations in FTAs investment chapters often present a better textual basis to reconcile investment protection with investment regulation. This could be made part of India’s new investment treaty practice. The article also assesses the provisions in the 2015 draft Model Indian BIT and concludes that the draft tilts the balance too much in favour of the host State’s regulatory power.","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-11-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123925115","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}
引用次数: 17
The Paranoid Style of Investment Lawyers and Arbitrators: Investment Law Norm Entrepreneurs and their Critics 投资律师和仲裁员的偏执风格:投资法规范企业家及其批评者
LSN: Investment (Topic) Pub Date : 2015-10-06 DOI: 10.2139/SSRN.2670118
D. Schneiderman
{"title":"The Paranoid Style of Investment Lawyers and Arbitrators: Investment Law Norm Entrepreneurs and their Critics","authors":"D. Schneiderman","doi":"10.2139/SSRN.2670118","DOIUrl":"https://doi.org/10.2139/SSRN.2670118","url":null,"abstract":"Investment arbitration lawyers and scholars have been reluctant to admit that there is any impending threat to the survival of investor-state dispute settlement. There is no legitimacy crisis, they maintain, at most there is a public relations problem. Sornarajah, however, has been predicting the demise investor-state dispute settlement for some time, even as the evidence for this remains tentative and uneven. Despite their exhibition of confidence, investment lawyers appear worried nevertheless. They have been issuing intemperate screeds, accusing critics of being 'misguided,' 'shrill' 'propagandists,' and spreading 'lies.' This paper examines some of the evidence that provides grounds for confidence and concern on the part of investment policy entrepreneurs. The paper also offers some thoughts on why investment lawyers, on those rare occasions when they choose to engage with their critics, do so in these belligerent terms.","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125247472","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}
引用次数: 6
The Right to an Unchanging World. Indirect Expropriation in International Investment Agreements and State Sovereignty 保持世界不变的权利。国际投资协定中的间接征收与国家主权
LSN: Investment (Topic) Pub Date : 2015-09-01 DOI: 10.2139/SSRN.2676166
Ivan Pupolizio
{"title":"The Right to an Unchanging World. Indirect Expropriation in International Investment Agreements and State Sovereignty","authors":"Ivan Pupolizio","doi":"10.2139/SSRN.2676166","DOIUrl":"https://doi.org/10.2139/SSRN.2676166","url":null,"abstract":"This paper examines indirect expropriation in international investment agreements, and compares current foreign investments protection with property protection in the XIX century USA, when the US Supreme Court adhered to an abstract and de-physicalized conception of property, later contested by legal realists. Its central claim is that investor state arbitration poses a serious and underestimated challenge to state sovereignty, allowing arbitrators with a ‘proto-constitutional’ power of judicial review on regulatory powers, including the legislative one. Moreover, the indeterminacy of indirect expropriation leads to a potential transformation of property rights protection that could eventually give transnational enterprises a new ‘right to an unchanging world’, as the US Supreme Court did more than a century ago, albeit this time on a global scale.","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129548952","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}
引用次数: 0
The Investment Chapter of the Trans-Pacific Partnership Agreement and Latin America: A Possibility of Change and Convergence? 《跨太平洋伙伴关系协定》投资章节与拉丁美洲:变革与趋同的可能性?
LSN: Investment (Topic) Pub Date : 2015-06-19 DOI: 10.2139/SSRN.2621324
R. Polanco
{"title":"The Investment Chapter of the Trans-Pacific Partnership Agreement and Latin America: A Possibility of Change and Convergence?","authors":"R. Polanco","doi":"10.2139/SSRN.2621324","DOIUrl":"https://doi.org/10.2139/SSRN.2621324","url":null,"abstract":"This paper analyses the possible effects that would create for Latin American countries, the inclusion of an investment chapter in the Trans-Pacific Partnership (TPP) agreement, currently in negotiation. The article discusses four aspects that are of particular importance given the divergence of interests between some of the negotiating States of the TPP: the substantive protection of foreign investment and its scope; domestic regulations on capital controls; the emergence of state entities as foreign investors; and the settlement of disputes through investor-state arbitration. The author concludes that compared to the current international investment agreements signed by the Latin America countries that are negotiating the TPP, the inclusion of an investment chapter in this agreement is an opportunity to advance in the convergence on the regulation of foreign investment, both in terms of substantive standards of investment protection and to improve investor-state arbitration as a mechanism of dispute resolution.","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122891788","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}
引用次数: 1
The Origins of Argentina's Litigation and Arbitration Saga, 2002-2016 阿根廷诉讼和仲裁传奇的起源，2002-2016
LSN: Investment (Topic) Pub Date : 2015-05-13 DOI: 10.2139/SSRN.2602509
Arturo C. Porzecanski
{"title":"The Origins of Argentina's Litigation and Arbitration Saga, 2002-2016","authors":"Arturo C. Porzecanski","doi":"10.2139/SSRN.2602509","DOIUrl":"https://doi.org/10.2139/SSRN.2602509","url":null,"abstract":"The voluminous and protracted litigation and arbitration saga featuring the Republic of Argentina (mostly as defendant or respondent, respectively) established important legal and arbitral precedents, as illustrated by three cases involving Argentina which were appealed all the way up to the U.S. Supreme Court and were settled in 2014. At first glance, the scale of Argentina-related litigation activity might be explained by the sheer size of the government’s 2001 default, the world’s largest-ever up to that point. However, its true origins were the unusually coercive, aggressive way that the authorities in that country went about defaulting on, and restructuring, their sovereign debt obligations, as well as the radical, seemingly irreversible changes to the “rules of the game” affecting foreign strategic investors, which broke binding commitments prior governments had made in multiple bilateral investment treaties.","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"68 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114087639","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}
引用次数: 2
Bursting Policy Bubbles: The International Investment Treaty Regime 政策泡沫破裂:国际投资条约机制
LSN: Investment (Topic) Pub Date : 2015-03-20 DOI: 10.2139/SSRN.2704340
D. Behn, O. Fauchald, M. Langford
{"title":"Bursting Policy Bubbles: The International Investment Treaty Regime","authors":"D. Behn, O. Fauchald, M. Langford","doi":"10.2139/SSRN.2704340","DOIUrl":"https://doi.org/10.2139/SSRN.2704340","url":null,"abstract":"The growth in the signing of international investment agreements (IIAs) in the period 1990 to 2009 can be characterised as an international public policy bubble. Like the rise of privatisation at the domestic level, the expansion of this international treaty regime was arguably premised on an over-estimation of the benefits of protection of foreign direct investment in light of available evidence. Yet, by the mid-2000s, the international investment treaty regime was experiencing an acknowledged legitimacy crisis and policymakers in many states began shifting course. After identifying this policy bubble, this paper aims to develop the literature on policy bubbles further by focusing on the reaction to a bubble. We firstly chart the nature of state responses to the IIA bubble by examining policymaker behavior through the prism of states both as principals (regime designers) and litigants (respondents in investment treaty arbitration). We secondly ask why some policymakers have burst (or deflated) the investment treaty bubble. In doing so, we argue that reactions are driven by either (1) an awareness of the disequilibrium or (2) a shift in the underlying equilibrium that exposes the original disequilibrium. Both of these shifts are dependent are changes in the rational choice (objective) and constructivist (perceived) calculations of costs and benefits. Here, we argue that exposure to litigation, in particular, has exposed the existence of disequilibrium while shifts in domestic ideological preferences and investment flows have changed the underlying equilibrium point.","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122276568","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}
引用次数: 4
Australia, China and the Asia-Pacific: The Regulation of Investment Flows into Australia 澳大利亚、中国和亚太:对流入澳大利亚的投资的监管
LSN: Investment (Topic) Pub Date : 2014-12-01 DOI: 10.2139/SSRN.2532586
Vivienne Bath
{"title":"Australia, China and the Asia-Pacific: The Regulation of Investment Flows into Australia","authors":"Vivienne Bath","doi":"10.2139/SSRN.2532586","DOIUrl":"https://doi.org/10.2139/SSRN.2532586","url":null,"abstract":"Australia now has FTAs with investment provisions with ASEAN, Japan and Korea – the China agreement is now in its 20th round of negotiations and investment is, according to reports, a major issue. Australia is both a major exporter to developing countries and a recipient of substantial amounts of investment from developed and developing countries, particularly from China. It is also the subject of an investor-State arbitration (through the Hong Kong BIT). The paper addresses trade and investment regulations involving China, Australia and the Asia-Pacific. Although Australia cannot be placed in the category of a Southern country, its middle-level economy, and its role as a recipient of capital investment, presents some rather different issues to the developing-developed country analysis.","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130216211","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}
引用次数: 1
Fraport v. Philippines, ICSID, and Counsel Disqualification: The Power and the Praxis Fraport诉菲律宾，ICSID和律师资格取消:权力和实践
LSN: Investment (Topic) Pub Date : 2014-11-28 DOI: 10.1163/22119000-01504017
C. Rogers, Alexander Wiker
{"title":"Fraport v. Philippines, ICSID, and Counsel Disqualification: The Power and the Praxis","authors":"C. Rogers, Alexander Wiker","doi":"10.1163/22119000-01504017","DOIUrl":"https://doi.org/10.1163/22119000-01504017","url":null,"abstract":"An important 2008 ICSID ad hoc Committee ruling on disqualification of counsel has recently been published. The decision was rendered in the Fraport v. Philippines dispute. It was issued in the shadow of (but without reference to) HEP v. Slovenia. The Fraport decision arrives in the midst of a larger, ongoing debate in the international arbitration community generally about arbitral tribunals’ role in assessing attorney conduct and tribunal power to impose consequences for alleged misconduct. Earlier installments in the debate over counsel conduct focused almost exclusively on conflicts of interest between attorneys and the tribunal. Fraport represents an important contribution to the debate because it contemplates counsel conflicts of interest with parties. These types of conflicts, and allegations of counsel misconduct more generally, are increasingly common not only in investment arbitration, but also in international commercial arbitration cases. This essay explores, through the Fraport decision and other related cases tribunals' exercise of such power, analysis about the sources of such power, and the need for more deliberative efforts to clarify both the substance of the ethical obligations of counsel and the role of arbitral tribunals in enforcing such obligations.","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"241 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-11-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115589367","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}
引用次数: 0
Good Faith and Fair and Equitable Treatment in International Investment Law 国际投资法中的诚信与公平公平待遇
LSN: Investment (Topic) Pub Date : 2014-10-01 DOI: 10.1093/acprof:oso/9780198739791.003.0007
M. Paparinskis
{"title":"Good Faith and Fair and Equitable Treatment in International Investment Law","authors":"M. Paparinskis","doi":"10.1093/acprof:oso/9780198739791.003.0007","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780198739791.003.0007","url":null,"abstract":"Fair and equitable treatment is one of the most important rules of international investment law, yet the vagueness of its textual expression causes considerable problems in interpretation and application. In the absence of clear textual guidance, tribunals and legal writers have sometimes turned to more general concepts such as good faith and abuse of rights. Good faith plays various roles in legal reasoning about fair and equitable treatment. Sometimes it informs structures of reasoning and interpretation (as with any other rule of international law); sometimes it provides the broader background and hints at the systemic logic of a particular part of the rule; sometimes it is useful in oiling a particular bit of machinery of fair and equitable treatment; and sometimes it would be distinctly unhelpful, pulling the interpreter away from its own particularisations or even rules built on different premises. Overall, there is nothing more to this than the colloquial point about square pegs and round holes, and the sensible precaution that the systemic importance of a peg does not mean that it should be pushed down every hole.","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128737599","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}
引用次数: 0
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