• Bocconi Legal Papers

Publisher:
Bocconi University School of Law
Publication date:
2011-11-01

Latest documents

  • UnStayed Non-Default State Judgments And The Bona Fide Dispute Language

    This Note begins by discussing involuntary bankruptcy generally, the 1984 amendment made to the code affecting this issue, the relative legislative history, and the development of a definition for bona fide dispute. Second, both approaches for dealing with unstayed non-default state judgments as they relate to the requirements of involuntary bankruptcy will be examined. Third, this Note investigates the persuasiveness and negativities behind both approaches. Finally, in an attempt to resolve the ambiguity and solidify Delaware and Pennsylvania courts and the Circuits courts themselves, a suggestion will be made that the Third Circuit, and eventually the Supreme Court, adopt the Drexler approach, discussed infra. This is a per se rule that unstayed non-default state judgments are not subject to a bona fide dispute regarding liability or amount.

  • Why Venture Capital Will Not Be Crowded Out By Crowdfunding

    As the recovery period from one of the worst recessions in our history continues on, life for the fledgling and even, often times, experienced entrepreneur has been tough. Indeed, President Obama remarked “[c]redit’s been tight, and no matter how good their ideas are, if an entrepreneur can’t get a loan from a bank or backing from investors, it’s always impossible to get their businesses off the ground.” In response to this ever-present need for business funding, and in an attempt to stimulate the economy and job growth, Obama signed the Jumpstart Our Business Startups Act (“JOBS Act”) into law on April 5, 2012. The Act, among other things, increases a business’s access to capital by enabling them to sell securities to both accredited and non-accredited investors without registering or completing the full disclosure requirements typically required for public offerings. The overarching purposes of this paper will be to: 1) explain and analyze the relationship and overall dynamic that will exist between crowdfunding and VCs; 2) elucidate why investors should avoid or, at the very least, be wary of investing money through the crowdfunding medium; and 3) expound reasons as to why crowdfunding as a means of financing should be used as a last resort for a budding entrepreneur.

  • Pari Passu to Gunboats: NML V. Argentina

    This article provides a detailed overview of the latest litigation saga before the courts of the state of New York between NML Capital, a distressed debt hedge fund owned by Elliott Management Corporation, and Argentina. The two of them arguably constitute the most aggressive players in the area of sovereign debt, and it comes with no surprise that much of the relative law has been framed by disputes to which, either one or both of them, were parties. At the heart of the present dispute was the interpretation of the pari passu (originally meaning “on equal step/footing”) clause that was part of the Fiscal Agency Agreement, pursuant to which Argentina issued debt back in 1994. District court judge Thomas P. Griesa read in the clause an obligation of Argentina to make ratable payments to NML each time it pays its exchange bondholders, thereby reviving after approximately ten years of judicial and academic stalemate, the debate about the meaning of the cryptic pari passu clause. It is argued that the broad interpretation that the district court attached to the pari passu clause is misguided. What is more, it may open Pandora’s Box for the consensual sovereign debt restructuring framework currently at place by creating hazardous incentives for creditors and payment system operators. The article is structured in four parts: the first part describes the different phases of the litigation before the US District Court for the Southern District of New York and the US Court of Appeals for the Second Circuit, and also provides the factual background of Argentina’s 2001 default that gave rise to the litigation. The second and the third part present and evaluate respectively the findings of the second circuit court. To avoid repetition, the analysis is focused on the second circuit decisions that essentially encompass the district court’s rationale and also provide a more comprehensive discussion of the contested issues. The article concludes with a short note on the implications of the litigation for sovereign debt restructuring and also considers possible responses to the challenges ahead.

  • Cancelation of High Frequency Trades: Clearly Erroneous or just a Mistake?

    This paper focuses on an often overlooked and obscure element of the current marketplace: erroneous transactions. Historically, before the markets’ heavy reliance on automated systems, erroneous transactions were only rescindable if both parties agreed to rescind — a mutual mistake approach. Today, however, Exchanges have incorporated a dispute process to trade rescission, where members petition to the Exchange (the third-party) for cancelation of a bad-trade. A trade will then be nullified by the Exchange, if the Exchange finds that trade to be “clearly erroneous” or to have been made in “obvious error.” This dispute-process is called the “clearly erroneous execution” or “CEE” Rule (“CEE”). This paper traces the development of the CEE Rule, observing how the rule has evolved along with the rise of automated trading, and the Rule’s current-role in today’s market, that is dominated by high frequency trading (“HFT”) firms. This paper asks whether the CEE Rule has a positive effect on the market or whether it functions as a moral hazard. The paper concludes that trade cancelations under the CEE Rule should utilize the doctrine of unjust enrichment. If our markets encourage computer trading, then they must recognize and embrace its flipside: computer-glitches.

  • Fiscal Rules as an Instrument of Fiscal Consolidation (Chosen Issues)

    Chosen issues connected with fiscal rules will be analyzed in this paper. These rules can be used as an instrument of fiscal consolidation, which aim is to limit deficit and public debt. This issue is particularly important in times of a sovereign debt crisis, which many EU countries have to cope with. Regulations of the EU and Polish Fiscal Law concerning the analyzed issues will be discussed in this paper.

  • The International Criminal Court and Lubanga: the Feminist Critique and Jus Cogens

    The Lubanga decision, despite procedural missteps, further anchors the prohibition of child soldiers and child auxiliaries under international law. Feminist criticisms of Lubanga misapprehend the potential of Lubanga to attain the types of legal victories feminists strive for. While one can criticize Lubanga as a matter of procedure, Lubanga methodically strengthens the prohibition of child soldiery. The prohibition of child soldiers, like the prohibition of wartime rape, forced prostitution, and child sex-tourism are or are becoming jus cogens norms. Lubanga contributes to this coherence of jus cogens and sets the stage for extension of its logic into other wrongs committed to children.

  • How the French Supreme Court Annulled the First French Legislative Elections in the United States

    On February 15th, 2013, the French Supreme Court voided the election results for a newly created legislative seat in the French Parliament representing French nationals living in the United States and Canada. This decision was the result of a lawsuit filed in June 2012, challenging the election results on the basis of significant operational concerns and difficulties encountered by voters. Although a number of novel arguments involving internet and mail-in voting procedures were before the court, the decision to annul those results and declare the legislator ineligible for a year was strictly based on campaign finance rules violation grounds. Although the campaign finance jurisprudence was significantly clarified by this decision, a major uncertainty still remains about future overseas elections where the potential for voting operation failures, such as the internet vote, remain of significant concern.

  • Hong Kong’s Constitutional Structure: is it really a high Degree of Autonomy?

    With the transition of Hong Kong under a new constitutional order coalescing with the fact that it would continue to practice capitalism within a socialist framework it was only natural that conflicts would arise. Employing the concept of sovereignty and autonomy in other autonomous societies as a yardstick, this paper will examine whether China’s encroachment in Hong Kong’s ‘high degree of autonomy’ is consistent with the principle of ‘One Country, Two Systems’. In doing so, we will study Hong Kong’s executive, legislative and judicial power with the special ability to conduct external affairs. Although Hong Kong was excluded from exercising residual powers in paper, yet it was granted ‘other powers’ which will also be examined. Though China may see intervention in Hong Kong’s affairs as a necessary step to maintain territorial integrity, yet this paper will show that in the long term this may do more harm than good both in the international arena and to its capability of maintaining the trust of the Hong Kong people in its own government and the Central People’s Government, for whom trust is vital in order to succeed in their current reforms.

  • The Quality of Justice is strained: the Death Penalty in Nigeria

    “There is no doubt that over the past fifty years a global trend has emerged towards the abolition of the death penalty.”1 Spread over the world including some African countries, many scholars and advocates find the death penalty a violation of the international human rights standards.2

  • Harmonization of International Commercial Contract Law:The Case of International Distribution Agreements

    Private international law and contract law have often been subject to certain degrees of harmonization, at federal, regional and international levels. As a matter of fact, the growing of globalization, the increase of transnational commercial contractual relations, the developments in telecommunications and technologies, the collapse of the Soviet Union and the financial and economic crises in Asia and South America have led both Member States and the business community to establish common rules – or at least common principles – in order to ensure the economic operators a legal certainty, to make easier their activities (thus favoring the development of the economic liberalism ) and to increase a free-market competition. Even before these events, academic experts and practitioners had started studying both similarities and differences among the commercial domestic legislations by way of comparison.

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