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The Dodd Frank Act of 2010 (DFA) was the legislative response by the US Government to the Global Financial Crisis of 2007. DFA’s rescission of Rule 436 (g) of the Securities Act of 1933 - the exemption from liability clause - was the response to the post-crisis perception that credit rating agencies were insufficiently constrained by reputational risk considerations and consistently failed to provide high quality and accurate credit ratings as a consequence of the immunity they enjoyed and the regulatory reliance placed on ratings, as well as the conflicts of interest that they faced. This paper investigates whether the market failure event that occurred in the Asset Backed Securities market immediately after DFA was signed into law on July 21, 2010 was due to real economic concerns held by rating agencies about operating under a liability regime or whether it was merely an act of brinkmanship on the part of the rating agencies. The paper also predominantly examines US case law to identify the dilution of the freedom of speech defence in state courts, the conflict of interest issues and the legal challenges faced by plaintiffs when bringing a lawsuit against credit rating agencies, and proposes a novel co-pay and capped liability model to address the concerns of both credit rating agencies and investors.
A sound and well-functioning legal system will encourage growth in investment and create opportunities for investors. Trademarks as part of intellectual property play an important role in the future development of a country. A mark or symbol is needed in order to give products and services identity and to distinguish them and their qualities from identical or similar products and services of a competitor.
This research studies, examines and analyses the degree, nature and function of trademark protection within the legal system of Afghanistan and compare them with the Paris, Madrid and TRIPs agreements. It has been divided into four chapters: Chapter one provides general information and an overview of the current legal system of Afghanistan. Chapter two studies and analyses international agreements pertaining to the legal protection of trademark. It also critically assesses the ATML compatibility with these agreements: and answers the research question of to what extent the ATML provisions are compatible with them. Chapter three provides information on the different purposes of trademarks from a development perspective and compares the purposes provided by the ATML. Finally, chapter four assesses and examines the acquisition, assignment and termination of trademarks. The conclusions and findings of the thesis are the final section of this research.
Afghanistan, as a transitioning economy, has not developed a solid legal and practical foundation for providing comprehensive protection mechanisms for trademarks as have been articulated in developed countries and international agreements. Accordingly, the Afghan government has not entirely integrated these needs into its legal system and there are some inconsistencies of the ATML with these agreements.
One more challenge is the lack of appropriate legal institutions for issuing, managing, administering and protecting of trademarks. The establishment of a well-functioning administrative institution will serve to fulfil the objectives of the laws. Therefore, the CBR office holds the administrative responsibility for processing the registration of trademarks.
However, the methods and facilities of the CBR office remain outdated, and the office does not have the capacity to provide applicants with up-to-date administrative and technical facilities.
Therefore, legal protection of trademark in Afghanistan is linked not only to the existence of a well functioning of laws, regulations, clear procedures, mechanism and guidelines but also to an efficient and well-functioning administrative office.
The purpose of this thesis is to achieve two highly interconnected yet distinct tasks. On the one hand, the thesis explains how foreign investment insurance works by focusing on the law governing the relationships between involved actors. On the other hand, it provides a critique of the operation of foreign investment insurance as an investment protection instrument by mainly drawing on critical studies of the investment protection regime.
The main question this thesis attempts to answer is how foreign investment insurance works. I construe foreign investment insurance as a typical insurance product and focus on the operation of insurance arrangements from a legal perspective. Ideas about how insurance should be deployed in any given social, political or economic context are instrumental in the development of insurers, insurance products and insurance techniques. The thesis examines investment insurers, the products they offer and their techniques to identify and deal with so-called political risks.
Another important question concerns the notion of political risk. What are considered political risks in the context of investment insurance and how are they conceptualized by investment insurance providers? Investment insurers have largely adopted a business-oriented political risk definition which denotes governmental intervention in foreign investment as political risk without regard to the objectives of government actions. Descriptive studies explain political risk by replicating investment insurers’ categorization of basic coverages that include expropriation, currency inconvertibility and remittance transfer restrictions, political violence and breach of contract. Yet recent studies have increasingly provided in-depth analyses on the notion of political risk as well as on the specific categories of political risk, particularly expropriation. The thesis draws on these studies to critically discuss the concept of political risk as it is used by investment insurance providers.
I focus on foreign investment insurance provided by OPIC and MIGA due to their mandate to promote economic development in the capital-importing countries and for their historical role as the major providers of investment insurance. While focus is on MIGA and OPIC, the thesis offers a general account of the operation of foreign investment insurance by incorporating the available information on investment insurance industry and the international governance of investment insurance. The central issues explored in this thesis such as the principle of subrogation and the notion of political risk help me generalize the study as these issues are characterized similarly with respect to each public investment insurance provider.
The case studies and most examples in this thesis are based on expropriation risk insurance.
The article is designed to introduce and analyze authoritarian constitutionalism as an important phenomenon in its own right, not merely a deficient or deviant version of liberal constitutionalism. Therefore it is not adequate to dismiss it as sham or window-dressing. Instead, its crucial features – participation as complicity, power as property and the cult of immediacy – are related to the basic assumption that authoritarian constitutions are texts with a purpose that warrant careful analysis of the domestic and transnational audience.
The publication of the Liikanen Group's final report in October 2012 was surrounded by high expectations regarding the implementation of the reform plans through the proposed measures that reacted to the financial and sovereign debt crises. The recommendations mainly focused on introducing a mild version of banking separation and the creation of the preconditions for bail-in measures. In this article, we present an overview of the regulatory reforms, to which the financial sector has been subject over the past years in accordance with the concepts laid out in the Liikanen Report. It becomes clear from our assessment that more specific steps have yet to be taken before the agenda is accomplished. In particular, bail-in rules must be implemented more consistently. Beyond the question of the required minimum, the authors develop the notion of a maximum amount of liabilities subject to bail-in. The combination of both components leads to a three-layer structure of bank capital: a bail-in tranche, a deposit-insured bailout tranche, and an intermediate run-endangered mezzanine tranche. The size and treatment of the latter must be put to a political debate that weighs the costs and benefits of a further increase in financial stability beyond that achieved through loss-bearing of the bail-in tranche.
According to international and national constitutional law, indigenous peoples in most Latin American countries have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions. As a consequence of this and of a long and ongoing process of political debate and recognition, ever more indigenous peoples are practicing their own laws, following their own cultural traditions and customs. In doing so, they often draw on history, recreating their identities and reconstructing their distinct legal pasts. At the same time, historical research has increasingly pointed out the intense interaction between indigenous peoples and European invaders during colonial period. It has become clear that it is difficult to draw a clear line between purely ‘indigenous’ and ‘colonial’ legal traditions due to the hybridisation of indigenous and colonial laws and legal practices. The aim of this paper is to introduce this historiography and its relevance to law and to present some methodological challenges in writing the history of indigenous rights in Latin America resulting from this shift in (legal) historiography.
The EU Collective Redress Recommendation has invited Member States to introduce collective redress mechanisms by 26 July 2015. The well-known reservations claim potentially abusive litigation and potential settlement of not well-founded claims resulting from controversial funding of cases by means of contingency fees and from ‘opt-out’ class action procedures. The paper posits that there may also be some fear that the European Commission may try to pursue the enforcement of its regulatory agenda in this way at the expense of individual claimants’ interests. Therefore a comparative analysis is carried out to see to what extent concerns about individual rights as opposed to regulatory goals are reflected in the different newly revised systems in place across Europe. As an iterim result the Dutch settlement procedure for mass damage claims, the English Group Litigation Order and the German test case procedure turn out to be relatively well-suited to deal with mass damage claims. At the same time, none of them can quite reach an optimal balance between individual rights and regulatory goals and therefore each of them is subject to criticism. That is why the further question is raised in how far these procedures could complement each other, thus contributing to the enforcement of individual rights without overregulating markets in Europe.
The topic of global trade has become central to debates on global justice and on duties to the global poor, two important concerns of contemporary political theory. However, the leading approaches fail to directly address the participants in trade and provide them with normative guidance for making choices in non-ideal circumstances. This paper contributes an account of individuals’ responsibilities for global problems in general, an account of individuals’ responsibilities as market actors, and an explanation of how these responsibilities coexist. The argument is developed through an extended case study of a consumer’s choice between conventional and fair trade coffee. My argument is that the coffee consumer’s choice requires consideration of two distinct responsibilities. First, she has responsibilities to help meet foreigners’ claims for assistance. Second, she has moral responsibilities to ensure that trades, such as between herself and a coffee farmer, are fair rather than exploitative.
The venture capital industry holds relevance for entrepreneurs looking for money to finance an innovative project, investors seeking to make money by investing in entrepreneurial firms and governments trying to promote innovation and entrepreneurship. Venture capital investment could facilitate innovation and thus a better economy.
Venture capital has enabled the U.S. to support its entrepreneurial talent by turning ideas into world-famous products and services, building companies from mere business plans to mature and powerful organizations. Three of the five largest U.S. public companies by market capitalization – Apple, Google and Microsoft – received most of their early external funding from venture capital. Having its ups and downs, venture capital investment in the U.S. expanded from virtually zero in the mid-1970s to $8 billion in 1995 and $49.3 billion in 2014. Venture backed companies have been a prime driver of economic growth in the U.S.Across the pacific, venture capital investment in China has grown out of the transition from a centrally planned economy to a free market economy over the past three decades, becoming an important pillar supporting China’s innovation system. In 2015, a total of 2,824 venture capital investment deals provided an aggregate investment of $36.9 billion. Venture capital has long been a hot topic in China’s capital market, particularly since the government decided to boost “mass entrepreneurship and innovation” in 2014.
In the U.S., most venture capital firms are organized as limited partnerships, with the venture capitalists being general partners and the investors limited partners. Studies have shown that investors choose to invest through venture funds as an intermediary rather than placing their investments directly with the entrepreneurs; because of the high risk nature of the entrepreneur’s business, it is hard for them to get bank loans or direct equity investments. Conflicts may also arise, however, between the venture capitalists acting as agents and the investors as principals.5 This agency problem maybe particularly severe, since venture capital provides money for businesses with high potential and high risk, although the limited partnership has certain merits and is still most commonly chosen as the business form for venture capital funds.6 At the same time, the fact that general partners have total control of the partnership business necessitates that the agency problem is addressed by legal rules, contracts and other mechanisms.
Meanwhile, despite the rapid growth of venture capital investments in China, little attention has been paid to the organizational form of venture capital funds. In contrast to the U.S., most Chinese venture funds have been structured as corporations. One may argue that it was due to legislative reasons: that the limited partnership was not recognized by Chinese law when venture capital first appeared in China. However, after adopted a chapter was adopted in the Partnership Enterprise Law (PEL) governing limited partnerships in 2007, most of the venture funds abided by their choice, while those opting for the limited partnership have encountered difficulties: the limited partners are having trouble trusting the general partners with their money and are therefore interfering with the operation of the partnership business, which may lead to dissolution of the partnership.
This thesis applies transaction cost theory to explain the benefits and costs of choosing the limited partnership as a business form in the special context of venture capital investments, showing that the potential agency conflict between the general partners and the limited partners have been mitigated by legal and other mechanismsin the United States, and that the U.S. investors could therefore exploit the merit of the limited partnership form in venture capital financing. In China, investors have different answers to the agency problem. Similarly to the situation in the U.S., Chinese partners also employ contract terms to deal with agency problems, and the legislators enact laws that aim at regulating the limited partnership form; some legislation was even transplanted from the U.S., such as that part of the PEL which governs limited partnerships. It seems, then, that similar mechanisms that deal with agency problems also exist in China. However, given the unique history of the development of China’s innovation system and venture capital market, the effectiveness of these constraints is questionable. Chinese venture capital investors have therefore characteristically behaved differently to U.S. investors. Rather than relying on these questionable mechanisms, Chinese investors as well as the Chinese government have developed different approaches to addressing these agency problems.
The mainstream law and economics approach has dominated positive analysis and normative design of economic regulations. This approach represents a form of applied neoclassical and new institutional economics. Neoclassical and/or new institutional economic theories, models, and analytical concepts are applied automatically to economic regulatory problems.
This automatic application of neoclassical economics to economic regulatory problems loses sight of the valid insights of non-neoclassical schools of economic thought and theories, which may illuminate important aspects of the regulatory problems. This thesis, therefore, advocates an integrated law and economics approach to economic regulations. This approach identifies the relevant insights of neoclassical and non-neoclassical schools of thought and theories and refines them through a process of cross-criticism. In this process, the insights of each school of thought are subjected to the critiques of other schools of thought. The resulting refined insights, which are more likely to be valid, are then integrated consistently through various techniques of integration.
Not only does neoclassical (micro and macro) law and economics overlook the valid insights of non-neoclassical schools of thought, it is also highly reductionist. It ignores the interdependencies of legal institutions, highlighted mainly by the comparative capitalism literature, and the structural interlinkages among socio-economic actors, highlighted by economic sociology and complexity economics. Rather, it takes rational individuals and their interactions subject to the constraint of isolated institution(s) as its unit of analysis. In place of this reductionist perspective, the thesis argues for a systemic approach to economic regulations. This systemic perspective replaces the reductionist unit of neoclassical regulatory analysis with a systemic unit of analysis that consists of the least non-decomposable actors’ network and its associated least non-decomposable institutional network. Then, the thesis develops an operationalized and replicable systemic framework for systemic analysis and design of institutional networks.
Both the systemic and integrated approaches are theoretically consistent and complementary. The systemic approach is in essence a way of thinking that requires a broad and rich informational basis that can be secured by using the integrated approach. Due to their complementarity, they give rise to what I call “the integrated and systemic law and economics approach.” The thesis operationalizes this approach by setting out well-defined replicable steps and applying them to concrete regulatory problems, namely, the choice of a corporate governance model for developing countries and the development of a normative theory of economic regulations. These concrete applications demonstrate the critical bite of the integrated and systemic approach, which reveals significant shortcomings of mainstream law and economics’ answers to these regulatory questions. They also show the constructive potential of the integrated and systemic approach in overcoming the critiques advanced to the neoclassical regulatory conclusions.
The operationalized integrated and systemic approach is both a law and economics as well as a law and development approach. It does not only provide an alternative to mainstream law and economics analysis and design of economic regulations. It also fills a significant analytical lacuna in the law and development literature that lacks an analytical framework for analysis and design of context-specific legal institutions that can promote economic development in developing economies.