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Cities as a Source of Consumers\u27 Financial Empowerment
Full text linkProfessor Susan Block-Lieb, the Cooper Family Chair in Urban Legal Issues at Fordham Law, proposes that cities should be considered as an important source of consumer protection. Professor Block-Lieb examines various cities\u27 initiatives to provide debt advice to consumers, enhance consumers\u27 financial inclusion, and enable consumers to register complaints about financial services and possibly to mediate those disputes. It also explores some of the limitations of each of these strategies for consumer financial protection. The Essay next explains why cities can perform these sorts of consumer financial protection initiatives\u27that is, empowerment initiatives\u27better than other levels of government. This explanation is focused on cities\u27 concentrated proximity to consumers, their existing infrastructures, and their uniquely pragmatic methods of work. The author concludes by emphasizing the payoffs and limitations of emphasizing cities\u27 expertise in providing empowerment initiatives to resident consumers
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Global Scripts in Transnational Legal Orders and Governance
No full textGlobal scripts—the rules, norms, and standards in international texts, and the tacit assumptions that surround and give meaning to them—exist on numerous issues (finance, trade, economic development, climate change, education, human rights, and gender equality), at every level of engagement (international, national, local), and at every phase of recursive norm construction and contestation. Case studies involving global scripts appear across a wide range of scholarship—considering sociological, anthropological, or sociolegal perspectives, or on international political economy, international organizations, international relations, or law and development—but because they are focused on one piece of the puzzle at a time, variation exists regarding the definition of global scripts, the distinction between legal and policy scripts, and how explicitly scripts get articulated through and with reference to law. Enhanced theorization of global scripts holds promise for connecting legal to sociolegal scholarship precisely because global scripts and scriptwriting extend beyond the realm of law and lawmaking; it would enable deeper exploration of whether, how, and why a broad range of texts and practices influence behaviors
Reaching to Restructure Across Borders (Without Over-Reaching), Even after Brexit
Full text linkIs there such a thing as “good” forum shopping? Courts and commentators have begun to articulate the “virtues” of at least some forum shopping, including forum shopping to resolve corporate insolvency or financial distress whether on a domestic or global basis. Especially within the European Union (EU), acceptance has grown of debtors’ efforts to qualify as eligible to access the forum best able to resolve their financial difficulties, even where the efforts involve substantial “fact shifting,” so long as these efforts occurred transparently and were neither abusive nor in bad faith. Growing acceptance of such efforts is partly the result of jurisprudence of the European Union Court of Justice (CJEU) identifying a “freedom of corporate migration” as included among the EU’s foundational principles. This forum shopping debate within Europe has extended beyond proceedings subject to the EU Insolvency Regulation to address “pre-insolvency” initiatives, such as schemes of arrangement under English law, a statutory measure through which dissenting creditors may be bound to a company’s financial restructuring by court order. Although schemes of arrangement sit outside the EU Insolvency Reg, and only uneasily inside the scope of the EU’s Brussels and Rome Regulations, which together govern recognition and enforcement of judgments and choice of law clauses, corporate migrations to enable financial restructuring through schemes of arrangement have been viewed positively by British courts and generally have not been upset by continental European courts.
Debate on whether and when forum shopping to facilitate corporate rescue and restructuring should be viewed as “good” has shifted, recently, from courts and commentators to a broader, more political setting. The diplomats responsible for re-negotiating and revising the EU Insolvency Reg, which entered into force late June 2017, in the main accepted the contention that recognition of foreign schemes of arrangement ought to continue, but this resolution has in turn been upended by the recent referendum in the United Kingdom to exit the EU (Brexit). This article aims to do two things: First, it considers the case for and against recognition of foreign schemes of arrangement, in the end proposing a broader test for assessing forum shopping, one that considers the larger forum shopping system involving, not just litigants and courts, but also legislators and, in international settings, diplomats and global (or at least transnational) lawmakers. Second, the article argues that a systems approach provides a superior basis for examining the merits of forum shopping given recent context. What courts and litigants view as “good” forum shopping may well consider a narrower set of issues than those policymakers should view as relevant. The article claims that the Revised EU Insolvency Regulation and the eventual implications of Brexit provide one case study for application of a broad forum shopping system analysis; more extensive analysis of this approach is left for later research
Turnaround: Reflections on the Present Day Influence of Negotiations on International Bankruptcy at the Fifth Session of the Hague Conference on Private International Law in 1925
Full text linkIn 1925, the British government sent a delegation to the Fifth Session of the Hague Conference on Private International Law. The Hague Conference had met sporadically since 1893,1 but this was the first time the British government sent a delegation to The Hague to discuss the possibility of a diplomatic convention to reach international agreement on uniform rules on what continental Europeans called “private international law” — matters of jurisdiction, applicable law and procedure. The British delegation held limited authority from the Home Office: it could participate only in deliberations on a possible convention on bankruptcy law, and then only along the instructions provided to it. Given these narrow directions, it is perhaps not surprising that the British delegation left the 1925 conference before it ended and without agreement on a bankruptcy convention. It is, however, surprising today to realize that conversations about conflicts of law rules in international bankruptcies have been going on for almost 90 years. It is even more surprising that the contours of that discussion contain lessons that remain timely. This Article reviews the history of the 1925 Hague Conference proceedings on bankruptcy. My goal is both to reveal this history and to consider it in light of more recent transnational instruments coordinating cross-border bankruptcy proceedings, including the EU Regulation, UNCITRAL’s Model Law on Cross-Border Insolvency, and current proposals pending before the UN’s Commission on International Trade Law to consider the drafting of an international instrument to address certain conflicts of law rules applicable in cross-border insolvency proceedings. The paper proceeds in four parts. Part I provides a brief history of the beginnings of the Hague Conference on Private International Law, including Britain’s reticence to participate in this Conference. Part II discusses several initiatives on the topic of international bankruptcy presented before and by the International Law Association (ILA), especially a paper presented at the ILA’s 1924 session by an influential British solicitor, E. Leslie Burgin. Burgin’s efforts are emphasized because he seemed to have succeeded in convincing His Majesty’s Government to attend the Hague Conference on the topic of international bankruptcy law. Part III details preparations for participation in the 1925 conference by Great Britain’s Board of Trade. Part IV considers the proceedings of this Hague Conference on bankruptcy. A final section reflects, with the passage of time, on important lessons learned in this experience, with emphasis on the importance of the form of uniform ruleson conflicts of law in this context
Mandatory Protections as Veiled Punishments: Debtor Education in H.R. 975, The Bankruptcy Abuse and Consumer Protection Act of 203
Full text linkCase Against Supplemental Bankruptcy Jurisdiction: A Constitutional, Statutory, and Policy Analysis
Full text linkIn this Article Professor Block-Lieb critically examines the power of a federal district or bankruptcy court to adjudicate jurisdictionally insufficient claims which arise out of a common nucleus of operative fact with a proceeding which “arises under” the Bankruptcy Code, or “arises in” or “relates to” a bankruptcy case. After considering Article III of the United States Constitution, relevant statutory provisions--including the newly enacted supplemental jurisdictional provision (28 U.S.C. § 1367)-- and the conflicting policy objectives of these statutory provisions, the Article concludes that a district court\u27s adjudication of supplemental claims related to a “related to” proceeding may be unconstitutional, unauthorized by statute, and inconsistent with the primary purpose of bankruptcy jurisdiction--the efficient administration of a bankruptcy estate. As to a district court\u27s exercise of jurisdiction over supplemental claims related to an “arising under” or “arising in” proceeding, it proposes that a balancing approach be adopted. It also contends that additional constitutional concerns are raised when a non-Article III bankruptcy court exercises any form of supplemental bankruptcy jurisdiction, and advocates limiting the power of bankruptcy courts accordingly
Fishing in Muddy Waters: Clarifying the Common Pool Analogy as Applied to the Standard for Commencement of a Bankruptcy Case
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Austerity, Debt Overhang, and the Design of International Standards on Sovereign, Corporate, and Consumer Debt Restructuring
Full text linkFollowing the Asian Financial Crisis, sovereign debt defaults prompted calls by the International Monetary Fund (IMF) for a statutory Sovereign Debt Restructuring Mechanism (SDRM). In promoting the SDRM, IMF leaders argued that countries\u27 sovereign debt problems needed something like U.S. Chapter 11, which is to say that IMF leaders supported the SDRM proposal with reference to legal claims rather than relying on purely economic arguments about the welfare benefits of resolving debt overhang. Framing the debate in this way caught on, but by 2005 the IMF board of directors had rejected the SDRM proposal. The current Global Financial Crisis similarly has resulted in more than several sovereign borrowers\u27 defaults and has, in turn, renewed calls for revision of the process for restructuring sovereign indebtedness. This time, however, the rhetoric has shifted away from legal metaphor. Rather than comparing sovereign borrowers to corporations in financial distress, sovereign debt has been discussed in terms reminiscent of household debt. Countries should, we are told, practice financial austerity. This paper unpacks the differences among indebtedness owed by public and private, corporate and consumer, borrowers, and the distinct implications for restructuring these different sorts of debt. It argues that modern economic literature on sovereign debt has been chasing the wrong metaphor. The puzzle of sovereign debt shifts when sovereign borrowing is viewed through the lens of consumer (not corporate) borrowing. This shift in metaphor promises more than a new rhetori
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