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    Climate Change is Getting Worse

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    Evidence of global warming is “unequivocal,” according to a recently released report by the Intergovernmental Panel on Climate Change (IPCC). The IPCC also expressed “high confidence” that the current emissions trajectory will lead to “severe, pervasive and irreversible impacts for people and ecosystems” by 2100. “Time is not on our side,” lamented United Nations (UN) Secretary General Ban Ki-moon upon the release of the IPCC report. The report comes at what may prove to be a pivotal time for international negotiations over climate change. The U.S. and China recently signed a historic accord, yet some in Congress remain opposed to regulatory action to reduce carbon emissions and have threatened to resist it. Low energy prices are further reducing the incentives for policy action in the United States. Against the backdrop of these recent developments, the IPCC’s Fifth Assessment Synthesis Report provides a foundation for a potential international agreement on binding emissions reduction at the UN’s Paris Summit in late 2015. To prepare for the Summit, the IPCC completed the Herculean task of incorporating much of the existing academic literature into what is widely considered the most authoritative statement of what is known about climate change. The IPCC’s report begins by framing climate change in terms of risk – the chance of “hazardous events” occurring multiplied by “the magnitude of the consequences.” In this context, a low-probability, but high-magnitude event – like catastrophic flooding – can be just as a bad as one that is much more likely but less devastating. In other words, the consequences of climate change array along a continuum of possibilities, each rather literally representing a different state of the world. The report is divided into four parts: (i) observed changes; (ii) expected future impacts; (iii) mitigation and adaptation strategies; and (iv) policy implications. The first part of the report details what are largely factual findings with respect to climate change and the causal mechanisms underlying it. The report states that “human influence on the climate system is clear.” Between 1970 and 2010, 78% of the increase in emissions came from fossil fuel combustion, overwhelming the climate system’s natural carbon removal mechanisms. As a result, greenhouse gas concentrations have reached a level the IPCC says is “unprecedented in at least the last 800,000 years.” Climate change and its second-order effects have already devastated some natural systems, according to the IPCC. While the impact has been less pronounced for humans thus far, the report documents “global scale changes in the frequency and intensity of daily temperature extremes,” including a doubling of the propensity for heat waves in some areas. The second part of the IPCC’s report warns that, if unabated, climate change will “amplify existing risks and create new ones.” The report presents a range of potential scenarios, focusing on what it calls the four Representative Concentration Pathways (RCPs). These RCPs – or projections for future growth in greenhouse gas emissions – range from taking no action to significant reductions in greenhouse gases. Notably, under all four RCPs – even the one with the most significant reductions – there remains at least a nontrivial chance of global warming exceeding the critical 3.6° F threshold by 2100. The 3.6° F threshold is a level the IPCC found to be the maximum temperature accretion that can occur without unacceptable risks of “irreversible” damage. The table below, a simplified summary of Table 3.1 from the IPCC’s report, illustrates the four RCPs. The dotted arrow shows the current trajectory of global warming, which, according to the IPCC, is “more likely than not” to exceed 7.2°F by 2100. The report states with “high confidence” that this trajectory presents major risks of “substantial species extinction, global and regional food insecurity, [and] consequential constraints on common human activities.” This summary of the IPCC’s analysis helps illustrate a crucial point: there appears to be no state of the world in which human intervention improves the environment. As a consequence, climate change innately decreases our expected value: in finance terms, the potential return – in this case always negative – multiplied by its probability. Through the lens of risk, climate change creates a potential harm of uncertain magnitude (albeit, for the time being, one largely confined to statistical models rather than experienced reality). The abstract nature of the harms from climate change, combined with loss aversion – or the psychological phenomenon of feeling the pain of losses more than the pleasure of comparable gains – make it exceedingly difficult for nations to reach a global agreement. The recent U.S. – China accord demonstrates the potential for viable international cooperation, but thus far has been the exception rather than the norm. In its third part, the IPCC’s report focuses on strategies for mitigating climate change while also adapting to its effects and maintaining economic development. Although adaptation can “reduce the risks of climate change impacts,” the report emphasizes the paramount importance of reducing emissions. Based on scenarios that begin reductions immediately and set a “single global carbon price,” the IPCC estimates mitigation will reduce the annual growth rate of consumption – essentially, the additional amount consumers can spend each year – by a median of .06%, to between 1.54% and 2.94%. Although carbon pricing remains controversial in the U.S., the nonprofit Carbon Disclosure Project has found what it purports to be “a global corporate consensus” on putting a price on carbon emissions. Even major corporations are managing their own operations with the expectation that carbon emissions will be priced. For example, ExxonMobil incorporates “shadow prices” for carbon into its long-term project planning, setting a rate of 60atonby2030and60 a ton by 2030 and 80 a ton by 2040. Exxon’s internal carbon pricing is notably similar to the International Monetary Fund’s (IMF) current 57pertonestimateofthesocialcostsofcarbonandmateriallyhigherthantheU.S.administrationsestimateof57 per ton estimate of the social costs of carbon and materially higher than the U.S. administration’s estimate of 35 per ton. Based on the IMF’s 57pertonpriceandthemidpointoftheIPCCsemissionsestimates,thecurrentannualglobalcostofcarbonemissionsaddsuptoabout57 per ton price and the midpoint of the IPCC’s emissions estimates, the current annual global cost of carbon emissions adds up to about 2.8 trillion. Importantly, this represents the externality generated by carbon emissions – not the cost of mitigating climate change. The impact on the economy can be significantly reduced by shifting energy production towards alternatives, which have rapidly decreased in cost, approaching parity with fossil fuels. The final part of the IPCC’s report stresses that a comprehensive climate change policy necessitates robust international, regional, and national collaboration that is integrated with “societal objectives” like sustainable development. The report also highlights an important challenge to securing international agreement. Although the effects of climate change are felt around the world, not all nations are equally affected, equally responsible, nor equally equipped to reduce the risks. Fossil fuel production also remains a backbone of many nations’ economies, including those of Russia, Nigeria, Canada, and Australia. To help poorer countries adapt to the adverse effects of climate change, the U.S. recently committed to underwriting 100billionannuallyby2020,aslongasAmericasdemandsforaglobalwarmingpledgearemet.Inanefforttofulfillthatpromise,PresidentObamapledged100 billion annually by 2020, “as long as America’s demands for a global warming pledge are met.” In an effort to fulfill that promise, President Obama pledged 3 billion to a UN-backed fund at the G20 summit in Brisbane, while at the same time prodding the host country to “step up.” The IPCC – which shared the 2007 Nobel Peace Prize with Al Gore – is a multinational research body supporting the United Nations Framework Convention on Climate Change (UNFCCC). The UNFCCC was ratified by 196 nations with the goal of limiting temperature increases relative to the pre-industrial period to 2° Celsius (3.6° F) by 2100

    Russia\u27s Roulette: Sanctions, Strange Contracts & Sovereign Default

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    This Article is the first comprehensive, multi-disciplinary analysis of Russia’s sovereign debt and the consequences of a potential default. [...] This Article introduces a Russian debt taxonomy divided into four distinctive categories. Starting with relatively standard terms in late-1990s vintage bonds, over time and as a close function of geo-political developments, the contracts grew unusual—bordering towards lawless. [...] The rest of this Article is organized in four parts. Part II provides critical background regarding Russia’s sovereign debt and details key legal provisions likely implicated in the event of a default. Part III discusses how, due to the complex interplay between global sanctions and Russia’s sovereign debt, policy measures have pushed Russia towards default. Part IV analyzes the unprecedented legal challenges implicated by Russian default, including determining its obligations, contractual remedies, and challenges in resolution. Part V focuses on broader implications, including with respect to future sanctions regimes and potential legal conflict between bond investors and Ukraine over Russian assets, which this Article posits imperatively necessitates legislative action to prevent a morally unacceptable outcome. This abstract has been taken from the author\u27s introduction

    A Perilous Path to Financial Stability

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    In the wake of the financial crisis, one of the rare areas of relative consensus was that systemic risk played a role in exacerbating instability in the banking sector and capital markets. To combat this threat, the federal government created the Financial Stability Oversight Council (FSOC) which is now one of the most significant and widely criticized aspects of the 2010 Dodd-Frank Act. FSOC is broadly tasked with aggregating information from several federal agencies to assess and mitigate systemic financial risks. However, a recent report by the Government Accountability Office (GAO) found that FSOC might still be uninformed “about critical vulnerabilities in the financial system.” “Systemic risk” is a complex and somewhat amorphous term, but can be likened to a broader manifestation of the traditional bank run, where depositors flee a specific institution because of concerns over its solvency. Whereas bank runs are largely mitigated through Federal Deposit Insurance, systemic risk impacts both regulated and ‘shadow banking’ systems – institutions encompassing $14.04 trillion of assets that arguably perform banking functions, but are not subject to the same regulations – and thus, cannot be resolved through deposit insurance alone, prompting FSOC’s creation as the “first-ever systemic regulator.” FSOC operates as a coordinating forum – essentially, a mandatory set of processes, best practices, and research functions – for the nation’s 15 primary financial regulatory bodies, and is organized in a hub-and-spoke model chaired by the Secretary of the Treasury. FSOC’s mandated objectives are: identifying systemic financial risks, eliminating unique dangers posed by highly interconnected – ‘too big to fail’ – institutions, and maintaining financial stability. According to Professor Zvi Eckstein – the former Deputy Governor of the Bank of Israel and currently a Visiting Professor at the University of Pennsylvania’s Wharton School – in practice, FSOC’s role encompasses supervision of traditional financial institutions, oversight of “shadow banks,” and cooperation with other nations’ regulators. The GAO’s report analyzes progress made by FSOC since the GAO issued a previous set of recommendations, and ultimately identifies three key sets of issues. First, the GAO critiques FSOC’s internal processes and technological infrastructure, claiming that they are inadequate for its objectives. For example, the GAO found FSOC’s improvements in identifying emerging systemic threats through its Systemic Risk Committee to be insufficient due to over-reliance on individual member agencies’ unilateral identification of risks. Further, FSOC decided not to publicly disseminate its assessments of financial risks – information that the GAO felt policy makers and market participants “need to develop effective and timely responses to those threats.” Second, the GAO was unsatisfied with FSOC’s accountability and transparency, paralleling the sentiment of some lawmakers and commentators. In particular, the report critiqued FSOC’s framework for designating systemically significant financial institutions (SIFIs). SIFI designation enhances oversight by subjecting such firms to “stricter government regulations in risk-based capital, leverage and liquidity,” but also inherently imposes costs, that some argue unduly temper economic activity. The GAO noted that additional clarity regarding FSOC’s SIFI designation process could assuage market concerns without compromising the Council’s independent oversight. Finally, the GAO found that FSOC “could do more” to improve longstanding issues of inter-agency collaboration and coordination. FSOC’s complex power-sharing structure among numerous “independent agencies that retain existing authorities” inherently creates some tension, which may even be positive. However, the structure has resulted in jurisdictional conflicts, potentially hampering both the independence of member agencies and FSOC’s operational effectiveness. Notably, prior to the enactment of Dodd-Frank, the U.S. Department of the Treasury submitted a proposal for regulatory reform that attempted to sidestep concerns over chronic infighting among regulatory agencies. Most importantly, the proposal empowered the Federal Reserve to act as the single market stability regulator – an approach similar to that taken by other advanced economies, such as Australia, Israel, and Canada. Although the potential for excessive concentration of regulatory power may raise its own concerns, the Treasury’s initial recommendation helps illustrate the range of potential alternative approaches. Looking towards the future, Professor Eckstein noted that while FSOC has made “quite a lot of progress” in regulating traditional banks, oversight of non-traditional shadow banks has not yet been “tackled enough,” and international regulatory cooperation remains an ongoing effort

    Infrastructure Finance for the Public Good: How Asset Recycling Can Untangle the New York MTA\u27s $50 Billion Debt Load

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    Systematic infrastructure underinvestment – a 2.6trilliongap’–andacceleratingclimatechangehavebecomefactsoflifeintheUnitedStates.Thoughtypicallyattributedtopolitics,thisArticlepositsthecircumstancesasamarketdisequilibriumrootedinaninterplaybetweenuniquedimensionsofinfrastructureanddistinctivefeaturesoftheU.S.approach.Legislativeaction,includingtheInfrastructureInvestmentandJobsAct,isinsufficienttoovercometheselongstandingchallenges.Basedonabroad,globalstudyofeffectiveapproachestoinfrastructurefinance,aswellasamultidisciplinaryanalysisoftheeconomics,engineeringandfinanceliterature,thisArticleproposesaddressingtheU.S.infrastructuredisequilibriumthroughassetrecycling.Assetrecyclingisaninnovativestrategy,pioneeredinAustralia,premisedon:(i)monetizingexisting,governmentownedinfrastructure;and(ii)reinvestingtheproceedsindevelopmentofnewassets,whichcanberecycledagain,creatingavirtuouscycleonadebtneutralbasis.TheArticleillustratesthisapproachthroughadetailed,empiricalcasestudyoftheNewYorkMTA,thenationslargesttransitagency.TheMTAhasover2.6 trillion ‘gap’ – and accelerating climate change have become facts of life in the United States. Though typically attributed to politics, this Article posits the circumstances as a market disequilibrium rooted in an interplay between unique dimensions of infrastructure and distinctive features of the U.S. approach. Legislative action, including the Infrastructure Investment and Jobs Act, is insufficient to overcome these long-standing challenges. Based on a broad, global study of effective approaches to infrastructure finance, as well as a multi-disciplinary analysis of the economics, engineering and finance literature, this Article proposes addressing the U.S. infrastructure disequilibrium through asset recycling. Asset recycling is an innovative strategy, pioneered in Australia, premised on: (i) monetizing existing, government-owned infrastructure; and (ii) reinvesting the proceeds in development of new assets, which can be ‘recycled’ again, creating a virtuous cycle on a debt-neutral basis. The Article illustrates this approach through a detailed, empirical case study of the New York MTA, the nation’s largest transit agency. The MTA has over 50 billion of debt, COVID-19-related losses exceeding 20billionandbondcovenants,aswellasstatelawexplicitlyprohibitingbankruptcy.TheanalysisfindsthatmonetizingsolelytheMTAsbridgeandtunnelassets(butnotthesubway)throughalongtermconcessioncould,conservatively,generate20 billion and bond covenants, as well as state law explicitly prohibiting bankruptcy. The analysis finds that monetizing solely the MTA’s bridge and tunnel assets (but not the subway) through a long- term concession could, conservatively, generate 33 to 53billionsufficienttorepaythemajority,ifnotentirety,oftheMTAsobligations,givingitthewherewithaltobuildthesustainableinfrastructurethatNewYorkdeserves.Beyondthemechanicsandempirics,theunderlyingprinciplesleveragingprivatecapital,coupledwithrobustoversighthavefarbroaderimplications,asassetrecyclingisestimatedtorepresenta53 billion – sufficient to repay the majority, if not entirety, of the MTA’s obligations, giving it the wherewithal to build the sustainable infrastructure that New York deserves. Beyond the mechanics and empirics, the underlying principles – leveraging private capital, coupled with robust oversight – have far broader implications, as asset recycling is estimated to represent a 1.1 trillion opportunity. The Article concludes with a discussion of normative and policy considerations, as well as areas for future research, including multi-stakeholder governance frameworks for imperfect public goods, ESG-based contractual mechanisms and the interplay between infrastructure policy and climate change, with an emphasis on broad-based social and allocative equity

    A Floating Law Firm?

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    Could non-lawyers own law firms? According to a recent report by the Canadian Bar Association (CBA), the answer should be “yes.” In a potential “watershed moment” for lawyers in Canada, and possibly also in the United States, the CBA issued more than twenty major recommendations for changes to the legal profession, including – most controversially – the adoption of alternative business structures that permit non-lawyers to own and even manage law firms. The CBA’s report and recommendations are premised on fundamental changes in the overall economy impacting the legal marketplace, including changing client expectations as a result of increased globalization and new technologies, along with “a growing lack of access to legal services.” By facilitating innovation, modernizing regulation, and enhancing access to legal education, the CBA hopes that the Canadian legal profession can thrive despite challenges presented by exogenous market shifts. Although the report’s recommendations are non-binding even in Canada, the industry similarities and breadth of analysis make them relevant to the ongoing debate over the structure of legal services in the United States. The debate over alternative ownership structures for law firms largely stems from disagreement over the right balance between the benefits of insulating lawyers from a profit-maximizing marketplace, and the costs of limiting the commercial flexibility and diligent oversight provided by investors. The American Bar Association (ABA), representing lawyers in the U.S., considers the potential benefits of insulation to be paramount. Unlike virtually all other U.S. industries, the current legal structure effectively bars non-lawyers from owning or managing law firms, “to protect the lawyer’s professional independence of judgment.” In fact, the ABA Commission on Ethics 20/20, which reviews the conduct rules and regulation of the legal industry, recently rejected a proposal similar to that advocated by the CBA, despite legal challenges and the ABA’s own acknowledgement that there has been “no evidence of adverse consequences” resulting from the District of Columbia allowing “a limited form of nonlawyer ownership.” Other jurisdictions have already embraced the approach advocated by the Canadian Bar Association. In 2011, for example, the United Kingdom permitted “non-lawyers for the first time” to invest in law firms. Still farther back, Australia went a step further, becoming the first jurisdiction to allow publicly traded law firms, starting with the successful public offering of Slater & Gordon in 2007. Although most of Canada currently has similar limitations on law firm business structures as the United States, the CBA finds the restrictions to be unduly onerous. Its report concludes that relaxing existing demarcations could allow lawyers “to deliver some legal services profitably at a lower cost,” while more flexible business structures may “encourage more innovation and business process improvement.” Furthermore, research described in the CBA’s report, has shown that in England and Australia, “market liberalization and outside investment . . . are improving the availability of legal services and lowering costs,” demonstrating that “non-lawyer ownership need not cause harm to client representation or the public interest,” despite ongoing concerns over accessibility in Australia. Notably, for reasons paralleling the ABA’s apprehensions, the CBA report recommends that alternative business structures be “carefully regulated,” through a two-tiered framework similar to that used by England and Australia. First, as is currently the case, attorneys are directly regulated by the profession, and second, the law firm’s legal entity – now potentially owned by non-lawyers – would be regulated by law societies, with which firms would be required to register. Practitioners are divided on the potential benefits of alternative ownership structures for U.S. firms, with some concerned that “chasing monetary gain” will corrupt the profession and others seeing alternative structures as “simply codify[ing] arrangements that are already common.” Notably, the latter proposition is bolstered by the fact that many attorneys already work for and alongside non-lawyers – practicing law in-house and at government agencies – while seemingly retaining their professional judgment. Further, while American doctors adhere to similarly stringent ethical standards as attorneys, no comparable restrictions exist on non-physician ownership of hospitals – including publicly traded hospital systems. At the same time, just because outside investment may become an option does not mean that the industry will rush to embrace it. For example, large U.K. firms have yet to take advantage of alternative ownership structures, and few major Australian firms have followed Slater & Gordon’s lead to go public. Similarly, despite being largely unrestrained in their ownership structure, many prominent U.S. management consultancies – a business model relatively similar to law firms – have chosen to remain private partnerships because of institutional dynamics that facilitate lower transaction and governance costs through the structure. If the CBA’s recommendations are adopted, the potential transition to alternative ownership structures for Canadian law firms may rekindle the debate with respect to U.S. firms. In particular, the aggregate welfare effect of the U.K.’s – and possibly Canada’s – transition provides a robust counterfactual to the U.S. legal market that is certain to be closely monitored by commentators advocating for change, divided practitioners, and the ABA

    Can We Finally Fix “Too Big to Fail”?

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    In the final weeks of the 113th U.S. Congress, the House of Representatives passed legislation to change the bankruptcy rules for banks deemed “too big to fail.” The Financial Institution Bankruptcy Act of 2014 (FIBA) aimed to create a mechanism for such institutions to file for bankruptcy, thus forcing investors and creditors to bear the losses and mitigating harm to the broader economy. Notwithstanding bipartisan support in the House, FIBA is officially “dead,” as the Senate failed to vote on it before the expiration of the last term. However, given the political consensus to eliminate “too big to fail,” FIBA or related legislation may well be reintroduced in the new congressional term and ultimately reach President Obama’s desk. The “too big to fail” problem stems, at least in part, from an incongruence between the macroeconomic and legal policy frameworks. On the one hand, highly influential research – much of it by former Federal Reserve Chair, Benjamin Bernanke – suggests that a stable financial sector is necessary to effectively conduct monetary policy and steer the economy through crisis. In other words, to save the economy, you need functioning banks. In practice, however, this proposition leaves policymakers with only two unpalatable options: (i) providing government assistance, like the AIG “bailout”; or (ii) a bankruptcy filing, like that of Lehman Brothers. After Lehman’s chaotic bankruptcy in September 2008, regulators essentially decided that pledging tax dollars to bolster financial institutions was in the collective interest. Along with arguably “socializing” billions of private sector losses, these “bailouts” fueled the perception that some institutions, but not others, could count on government support. In other words, they were “too big to fail.” The Dodd-Frank Act sought to address this problem with the Orderly Liquidation Authority (OLA), which empowers the Federal Deposit Insurance Commission (FDIC) to wind down large, insolvent banks. OLA operates outside of the bankruptcy code and is instead modeled on the FDIC’s receivership process for failed deposit-holding banks. OLA does not monopolize regulatory power with the FDIC; rather, the crucial decision as to whether an institution is solvent is left to the U.S. Treasury, which also provides funding. From the get-go, OLA was a particularly controversial provision of a hard-fought-for Act, and tremendous political capital was expended to pass it. OLA has remained widely criticized. Market participants have decried giving “politically sensitive” regulators discretion to determine a bank’s fate while “pick[ing] winners and losers” amongst creditors. Likewise, legal scholars have delivered poignant critiques: a recent article in the University of Pennsylvania Law Review found OLA lacking with respect to “a number of fundamental constitutional benchmarks.” Although under Dodd-Frank using the bankruptcy code remains a preferred outcome, commentators and scholars believe that turning to OLA is nearly certain because “[t]he bankruptcy code as it currently exists won’t work for a large financial institution.” FIBA sought to remedy these limitations by tailoring and amending Chapter 11 of the bankruptcy code to serve as the “first line of defense for a distressed institution.” However, it notably retained OLA as a backup. Chapter 11 is typically used to facilitate corporate reorganizations. It offers powerful legal protections unavailable outside of bankruptcy, including the automatic stay, which halts collection efforts against the debtor, giving it a breathing spell to reorganize affairs. The automatic stay covers the vast majority of contracts, but notably excludes most derivatives through so-called “safe harbors” – a factor that may have exacerbated Lehman’s woes. Operationally, FIBA takes advantage of financial institutions’ legal structure – generally, a top-level holding company with numerous subsidiaries beneath it – through the “single-point-of-entry” (SPOE) approach, which it adopted from OLA. As the table below describes in greater detail, under the SPOE, FIBA effectively treats the holding company and operating subsidiaries as distinct entities. While the holding company is placed in Chapter 11, its subsidiaries continue to operate, minimizing harm to the economy and preventing “the chaotic sell-off” following Lehman’s collapse. Under FIBA, a bridge company is created to take the holding company’s place. Then, through a bankruptcy-specific sale mechanism, the bridge company purchases the subsidiaries, unencumbered by any the debts previously against them. This “free and clear” transfer is possible because the original investors – holders of the bank’s stock and bonds – suffer large losses. To put it differently, the metaphysical transition of subsidiaries is coupled with a very real separation of investors from their money – a factor that could “force creditors to price risks more appropriately” according to anticipated activity. Importantly, FIBA also heeds scholars’ long-standing counsel by ending the exemption of derivative contracts from the automatic stay. Derivatives are complex transactions whose value is based on the performance of an underlying asset or financial benchmark. They are often used for complex trading or risk management strategies: Lehman Brothers, for instance, had outstanding derivatives contracts with over 8,000 companies exceeding $700 billion. In part because of such intricate webs of exposure, derivatives were originally exempted from the automatic stay to “keep systemic risk in check” – a position an article by Professors David Skeel and Thomas Jackson described as “more than a little ironic from a post-2008 vantage point.” Notably, FIBA’s provision largely parallels an earlier accord by some of the world’s largest banks to “tear up the rule book on derivatives” by amending standard-form contracts to incorporate an automatic stay. In tandem, the incorporation of an automatic stay through both the standard-form contracts and FIBA could facilitate complex restructuring across legal jurisdictions. Yet, despite “broad support in legal circles,” FIBA was understood to have slim odds of ultimately becoming law. This is in part due to significant support for its more controversial companion bill, the Taxpayer Protection and Responsible Resolution Act (TPRRA), which was introduced in the Senate in 2013 but was not enacted. TPRRA aims to explicitly repeal OLA. Further, the TPRRA would prohibit government financing to facilitate the resolution process – a point on which FIBA is notably silent. While the TPRRA is officially “dead,” it could be reintroduced during the new congressional session. Given the reversal in party control of the Senate following the November midterm elections, commentators have noted that the TPRRA has become more viable. However, repealing OLA would be “a nonstarter for most Democrats” and would likely be vetoed by President Obama. A presidential veto can only be overridden with the support of two-thirds of both the House and the Senate – a tall order given that neither party commands two-thirds of either chamber

    The IMF’s Way Forward for Sovereign Restructuring

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    Like consumers who rely on credit cards to pay for their purchases, governments also have to borrow money. But what happens when a government runs into trouble repaying, as has happened in recent years with Argentina and Greece? While a consumer or corporation can seek Bankruptcy court protection under the well-established U.S. Bankruptcy Code, there is no system for sovereign debt restructuring. Instead, nations must rely on arms-length negotiated solutions with creditors, where traditional ‘holdout’ problems can loom large. To combat the inherent limitations of this approach – laid bare by the seizure of an Argentine warship to satisfy creditors – the International Monetary Fund (IMF) has proposed significant changes to the contractual structure of sovereign debt to facilitate restructuring. While the issuing nation sets the terms of its own debt, the IMF’s report carries tremendous influence for the sovereign debt market because of the Fund’s role as one of the largest lenders to sovereign states in financial distress and the perception that the Fund reflects the views of its 188-nation membership. The IMF’s first suggestion is to amend the contractual terms of parri passu clauses in future debt issuances to mitigate the impact of a 2011 New York state court decision in favor of ‘holdout’ creditors from Argentina’s debt restructuring. In corporate insolvency, the parri passu clause simply grants bonds “equal step” in payment relative to the debtor’s other unsecured obligations. However, there is less clarity in the sovereign debt context, leading some courts to conclude that, if a sovereign pays holders of restructured bonds in full, it must also pay holdout creditors. For example, following Argentina’s 2001 default, two restructurings – in 2005 and 2010 – resulted in 93% of creditors accepting newly-created exchange bonds worth roughly 30 cents on the dollar. However, a small group of ‘holdouts’ – deemed ‘vultures’ by Argentina’s president – rejected the deal and chose to litigate for full repayment. Prior to the New York decision, Argentina only paid interest to those who accepted the deal, giving holdouts nothing while the parties’ legal dispute continued. However, the court held that Argentina must pay “all past due principal and interest” to holdouts – roughly $1.6 Billion – if it pays holders of restructured bonds, for whom the court subsequently blocked payments. The Second Circuit upheld the decision in 2013, and despite Argentina’s appeals – buttressed by amicus briefs from Brazil, Mexico, and France, amongst others – the U.S. Supreme Court declined to review the decision. Although the ultimate impact of the ruling is uncertain – and may not be followed by UK courts, whose law governs approximately 40% of sovereign debt – the IMF found that it “may exacerbate collective action problems,” while making the “sovereign debt restructuring process more complicated.” The IMF’s second proposal is to strengthen Collective Action Clauses (CACs) – a legal agreement to overcome ‘holdouts’ by allowing a majority vote of creditors – typically 75% – to modify the terms of previously issued bonds. Although a powerful tool, CACs’ traditional series-by-series operation leaves an opening for creditors to purchase enough of a particular series to prevent a qualified majority from forming – known as a ‘blocking position.’ To nullify this strategy, the IMF has proposed adopting the “single limb” voting procedure – which channels the entire bond restructuring process through a single supermajority vote, binding upon all of the nation’s outstanding bonds. The successful Greek debt restructuring largely followed this template. At the same time, the IMF stressed the need for legal safeguards to protect legitimate creditor’s rights from potential “abuse” inherent in such a potent provision. While a notable shift from its earlier proposal for a more formal sovereign debt restructuring mechanism, the IMF’s report may facilitate “active consideration of the reforms in the contractual framework,” potentially achieving the intended objectives of greater consistency and transparency in sovereign debt restructuring

    Going Beyond Counting First Authors in Author Co-citation Analysis

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    The present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
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