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Human Rights Law and the Investment Treaty Regime
Get PDFIn its current form, the international investment treaty regime may stymie the business and human rights agenda in various ways. The regime may incentivize governments to favour the protection of investors over the protection of human rights. Investment treaty standards enforced through investor-state arbitration risk adversely affecting access to justice for project-affected rights holders. More broadly, the regime contributes to a system of global economic governance that elevates and rewards investors’ actions and expectations, irrespective of whether they have adhered to their responsibilities to respect human rights. Without comprehensive reform, investment treaties and investor-state arbitration will continue to interfere with realization of human rights and broader public interest objectives.
This Chapter provides an overview of the interaction between human rights law and the investment treaty regime. It highlights the challenges that arise from tension between international human rights and investment norms, including the impact of the investment regime on the ability of host states to regulate and on access to justice for investment-affected rights holders. The chapter also explores whether and how human rights issues have been addressed by the investment regime to date, highlighting recent developments in treaty drafting practice and responses to human rights argumentation by investment tribunals. It notes the shortcomings of current approaches, and concludes by briefly setting out options for reform
The Policy Implications of Third-Party Funding in Investor-State Dispute Settlement
Get PDFIn this Working Paper, CCSI analyzes underexplored yet critical policy issues surrounding the use of third-party funding in ISDS. It considers the costs and benefits of the practice, asks whether it is desirable or undesirable that third-parties be permitted to invest in ISDS claims, and if so, under what circumstances and in order to achieve what objectives, and overviews policy responses, including a total or partial ban and various regulatory responses, that may be appropriate to manage identified impacts
Ensuring Economic Viability and Sustainability of Coffee Production
Get PDFCoffee, the world’s favorite beverage, provides livelihoods for at least 60 million people across dozens of countries. Yet this beloved drink is experiencing a sustainability crisis. A sustained decline in world coffee prices has squeezed coffee producers, and thrown a tremendous number of producers below the global extreme poverty line. This report presents our research into sustainability within the coffee sector, including the results of our analytical and empirical modeling, and provides several recommendations
Rethinking the Law of Contract Damages
No full textIn this series of chapters on contract damages issues, Victor P. Goldberg provides a framework for analyzing the problems that arise when determining damages, and applies it to case law in both the USA and the UK.
In analyzing direct damages, the author treats the problem as pricing the option to terminate. This sheds light on the question of the date at which damages should be measured and the role of post-breach information in damage assessment. It shows how the treatment of the so-called lost volume seller in both countries results in the court constructing an absurd contract, setting an option price with perverse characteristics. Goldberg then considers two questions regarding consequential damages – the enforceability of consequential damages exclusion clauses and whether the lost profits claims of new businesses should be rejected.
Contracts professors, judges, lawyers and law students will be inspired by this volume to rethink the law of contract damages.https://scholarship.law.columbia.edu/books/1315/thumbnail.jp
Building Bridges: Examining Race and Privilege in Community Economic Development: Introductory Overview
Get PDFThe country has been in economic recovery since the Great Recession in 2007. Home prices have since stabilized after the mortgage and foreclosure crisis that followed the Recession. In late 2017, the federal government passed the Tax Cuts and Jobs Act, leading to a surge in corporate earnings. As of the time of this writing, major stock indicators are at all-time highs, and interest rates are low. But corporate indicators and interest rates do not paint the entire picture. Most of the economic recovery is in affluent, predominately white parts of the country, while distressed areas inhabited by people of color have been overlooked. While economic change may have come to certain neighborhoods, what has also changed are the racial demographics, increased housing prices, and access to health foods, along with the exodus of long-term residents. Wages are stagnant despite near zero unemployment, public schools are more segregated than ever, and the racial wealth gap widens. Patrick Sharkey calls this juxtaposition an uneasy peace. At the start of the new year, law professors gathered at the 2019 Association of American Law Schools ( AALS ) Annual Meeting in New Orleans, Louisiana, to discuss this uneasy peace and find solutions to address the systematic racial disparities that are barriers to achieving economic justice
Comment on Daniel A. Crane: A Premature Postmortem on the Chicago School of Antitrust
Get PDFA central question raised by the recent surge of neo-Brandeisian scholarship and advocacy is whether the nascent movement will deliver any form of lasting change to antitrust. In his essay for this issue of Business History Review, Daniel Crane is doubtful. He argues that critiques of the Chicago School are often simplistic and misunderstand its legacy, which includes institutionalizing economic theory in antitrust analysis in ways that even its post-Chicago critics absorbed and built on. The “consumer welfare” standard, Crane notes, still draws wide support across the ideological spectrum and may be capacious enough to accommodate a variety of approaches to enforcement. While critics of the Chicago School abound, there is “not an obvious replacement in sight” (p. 760). If anything, Crane observes, the moment presents an opportunity for post-Chicago scholars to “make significant inroads” in lieu of the “barbarians at the gate” (p. 775)
Nonvoting Shares and Efficient Corporate Governance
Get PDFA growing number of technology companies, including Google, Zillow, and Snap, have issued stock that does not allow investors to vote on corporate decisions. But there is fundamental disagreement among scholars and investors about whether nonvoting stock is beneficial or harmful. Critics argue that nonvoting shares perpetually insulate corporate insiders from influence and oversight, and therefore increase agency costs. By contrast, proponents contend that nonvoting shares may provide benefits that exceed these agency costs, such as enabling corporate insiders to pursue their long-term vision for the company without interference from outside shareholders.
This Article offers a novel perspective on this debate. It demonstrates an important and previously unrecognized benefit of nonvoting stock: that it can be used to make corporate governance more efficient. This is because nonvoting stock allows companies to divide voting power between informed shareholders who value their voting rights and uninformed, “weakly motivated” shareholders who do not. When this efficient sorting happens, a company will lower its cost of capital by reducing agency and transaction costs. Specifically, informed investors will pay more for voting stock that is not diluted by the votes of uninformed, weakly motivated investors; indeed, a company may even entice informed investors to invest by offering two classes of shares. Likewise, weakly motivated investors will gravitate toward shares that do not require them to incur the costs associated with voting, especially because nonvoting stock tends to trade at a discount relative to voting stock. In other words, the company that issues nonvoting shares for its uninformed shareholders will make itself more valuable.
This insight has several implications for the law. Most importantly, this Article contends that recent proposals to restrict or deter companies from issuing nonvoting shares should be rejected. Under certain circumstances, nonvoting stock has beneficial functions, and therefore, restricting its use may impede efficient corporate structuring
Regulating Financial Markets – An LTF Perspective
Get PDFThis chapter applies the “Legal Theory of Finance” (LTF) I developed in a paper, which was published in the Journal of Comparative Economics in 2013. Together with other research projects, conferences, and workshops conducted in the intervening period, this chapter illustrates the explanatory powers of the theory and its ramifications for the regulation of financial systems. I am grateful for the conference and this volume, and to the other authors in it who have tested LTF in application to new circumstances as they offer a good opportunity to step back and ask more basic questions about LTF: What is the nature of this theory and how can it help us understand financial markets? What are the possible implications of this theory for regulating financial markets, both nationally and globally – the topic of the conference that motivated this book’s publication? What are the implications of the theory for democratic governance?
To start, I will briefly summarize the building blocks of the original theory. In the second part of this chapter, I will extend these buildingblocks to a process analysis of the financial system. I will argue that a better understanding of financial systems, their construction, regulation, and failure, we need to understand both public and private law,and the use of one to undo the other. Private law, I will argue, furnishes the basic elements for financial assets and their issuers, while public lawand regulation seeks to mitigate the risk they might pose for stability. It is often feared that excessive public regulation can “kill” the market; less well appreciated is that with the help of private law, the effects of most regulation can be muted
Sovereignty and Complex Interdependence: Some Surprising Indications of Their Compatibility
Get PDFEven as democratic sovereignty and globalization are increasingly seen as incompatible in theory, this chapter argues that, in some important realms, they are proving compatible in practice. As tariffs have fallen to negligible levels, trade agreements among rich countries have come to focus on reconciling regulatory differences. In many sectors, novel forms of cooperation have emerged that allow trade partners deliberately to investigate and learn from one another’s practices, eventually recognizing the equivalence of regimes that are not strictly identical — and in the process extending domestic political oversight to relations among states while often heightening domestic accountability. The emergent institutions of regulatory equivalence suggest a practical, if partial, possibility for realizing Kant’s “negative surrogate” or federation of democratic republics, growing incrementally through voluntary association, as a substitute for a global state
Corporate Governance for Sustainability
Get PDFThe current model of corporate governance needs reform. There is mounting evidence that the practices of shareholder primacy drive company directors and executives to adopt the same short time horizon as financial markets. Pressure to meet the demands of the financial markets drives stock buybacks, excessive dividends and a failure to invest in productive capabilities. The result is a ‘tragedy of the horizon’, with corporations and their shareholders failing to consider environmental, social or even their own, long-term, economic sustainability.
With less than a decade left to address the threat of climate change, and with consensus emerging that businesses need to be held accountable for their contribution, it is time to act and reform corporate governance in the EU.
The statement puts forward specific recommendations to clarify the obligations of company boards and directors and make corporate governance practice significantly more sustainable and focused on the long term