Financial Intermediaries: Markets, Regulation, and the Law
Financial intermediaries are crucial to the operation of capital markets because they faciliate access to debt and equity investment and capital and, in many ways, manage the flow of information to investors from issuers of securities. This course considers key regulatory objectives for the regulation of financial intermediaries in light of the functions they serve. The course examines perspectives from Europe and the United States, covering legal basics as well as selected regulatory specifics. Although investor protection as conventionally understood substantially relies on disclosure requirements, over the last decades financial innovation led to more complex investment instruments. The financial crisis of 2007-2009 placed financial stability at the core of regulatory concern alongside investor protection. It also highlighted the crucial roles that financial intermediaries serve as gatekeepers that aggregate and evaluate information but are also potentially subject to significant conflicts of interest. Part one of the course considers the extent to which investor protection and financial stability can be complementary or conflicting objectives, taking into account a series of regulatory frameworks in Europe and the United States. These will include mandatory disclosure requirements for capital raising as well as the capital requirements applicable to banks. It will also consider the role of credit rating agencies as significant intermediary institutions. Part two of the course will examine investment management and execution of transactions in securities. In both the United States and Europe, investment managers, advisors, and transactional intermediaries (such as brokers) are subject to detailed regulatory rules and institutions, which operate against a significant background of general law, including agency and fiduciary principles. Like the topics considered in Part one of the course, regulation often requires choices among multiple objectives.
Foreign Relations Law and Constitutional Democracy: National and EU Perspectives
This course will consider some of the legal issues common to constitutional democracies, as well as to the European Union (EU) as a supranational entity, in allocating authority in the conduct of foreign affairs. These issues include the distribution of powers between the legislative and executive branches relating to topics such as the making and unmaking of treaties, the conduct of diplomatic relations, and the use of military force. They also concern the constitutional and other questions that can arise when nations delegate sovereign authority to international institutions. Moreover, in federal systems and in the EU, there are also issues relating to the vertical distribution of authority between the federal/supranational whole and its constituent parts in situations in which foreign affairs are implicated. The course will also consider the proper role of courts in addressing foreign affairs questions, including their role in applying international law. Finally, the course will reflect on broader issues concerning the nature of foreign relations law as a field of study and the potential benefits and drawbacks of making comparative evaluations of foreign relations law. The first half of the course will compare and contrast how various constitutional democracies address common legal issues relating to foreign affairs, and the second half will focus on how these issues are addressed within the system of external relations of the European Union and its Member States.
Fragmentation and Complexity in International Environmental Law
This course will address problems and opportunities in international environmental law, notably the challenge of fragmentation across multiple treaty regimes and multiple scales of governance. The environment is interconnected whereas legal regimes may be disconnected. This fragmentation can yield gaps, conflicts, and tradeoffs. But coordinating or integrating toward a more holistic comprehensive system can also pose its own problems. The course will focus on two main areas: (1) Water. The law of transboundary water resources has significantly developed in the last years. The UN Convention on the Law of the Non-Navigational Uses of International Watercourses has entered into force in 2014 and the Convention on the Protection and Use of Transboundary Watercourses and International Lakes has been opened to all UN member States in 2016. Although these major developments, a large number of international watercourses remain without agreements or do not include all riparian States. Moreover, only a few treaties regulate the management and protection of shared aquifers. This mixed picture of successes and failures presents a major challenge to international lawyers. Many principles and rules protect transboundary water resources at the global, regional and specific basin levels. Through the analysis of general environmental law, water law agreements and the jurisprudence of international courts and tribunals, the course will analyze the rules and principles applicable in this field and the settlement mechanisms of water disputes. The course will also focus on the relationship between water resources’ regimes and other legal regimes (human rights, international humanitarian law and international economic law). (2) Air. International law has developed multiple regimes to address the air, atmosphere and beyond, including air pollution, climate change, ozone depletion, aviation, the moon and outer space. These regimes have been described as a “regime complex” made up of many different and evolving elements, such as national laws, the agreement on Long-Range Transboundary Air Pollution (LRTAP), the Framework Convention on Climate Change (FCCC) and Paris Agreement, the Montreal Protocol on Substances that Deplete the Stratospheric Ozone Layer, the International Civil Aviation Organization (ICAO), the Moon and Outer Space treaties, and the related Planetary Protection protocols. This system – or lack of a system – may simultaneously exhibit gaps (issues unaddressed by any regime) and conflicts (issues addressed by more than one regime). One regime may have effects on another regime, such as tradeoffs that impair the achievement of the other regime’s goals, or mutual reinforcement that advances joint goals. Overall, we may learn from experience with multiple international regimes for water, air and other resources, both about the performance of these regimes and about how best to deal with fragmentation. This course will study this complexity, with its lessons, challenges, and opportunities for the future.
International Commercial and Intergovernmental Arbitration
The first term of this course will provide an overview of the process of arbitration, focusing on how it is structured and utilized in the United States. This will include a focus on American perspectives on international arbitration, contrasting it with the more controversial uses of arbitration to resolve consumer-related disputes. The course will also examine efforts to ensure the quality of the arbitration process such as efforts to guard against the “evident partiality” of arbitrators. The course will identify a number of legal issues relating to the arbitration rules of several of the most important international institutions administering cross-border commercial arbitrations, including the American Arbitration Association (AAA), the UN Commission of International Trade Law (UNCITRAL), and the International Chamber of Commerce (ICC). The second term will be devoted to the study of two different systems of international intergovernmental dispute resolution. One week will be devoted to an overview of the dispute settlement system of the World Trade Organization (WTO), which exists for the adjudication of intergovernmental disputes between countries. The subject matter of WTO disputes includes issues relating to trade in goods, trade in services, and intellectual property. Another week will be devoted to an overview of investor-State dispute settlement, conducted under the UNCITRAL and ICSID arbitration rules. The subject matter of investor-State dispute settlement, which exists for the adjudication of disputes between governments and private entities relates to the treatment of foreign investors (corporations or natural persons) and their investments, and covers issues extending from contractual arrangements to government regulatory measures.
Taught by Metzloff and Yilmaz/Cook
Introduction to American Law
This course is intended to provide an introduction to essential elements of the American legal system. Emphasis will be placed on exploring contemporary problems that reveal key issues and concerns within the American legal system. The first term of the course will focus initially on U.S. Constitutional law and then on the U.S. litigation system. The course will consider the role that the U.S. Constitution plays in the United States and the challenges inherent in interpreting and applying it. Specific topics will include a focus on recent Supreme Court cases involving affirmative action and privacy rights, as well as a series of issues involving the First Amendment.
Introduction to International Taxation
This course will begin with a general exploration of income tax concepts, with a focus on the American income tax. It will then identify some of the special problems that arise in international business and investment contexts, in which two or more nation-states have plausible claims to tax jurisdiction over the same income amounts. In the first two weeks, the focus will be on the U.S. response to these challenges. In the second two weeks, the focus will shift to international tax treaties as a means of relief of double taxation. The course will also examine various other challenges to the integrity of the international tax system, including harmful tax competition, transfer pricing, and base erosion/profit sharing. The course will conclude with a discussion of the principles of income taxation in Switzerland and the European Union.
Taught by Schmalbeck and Chand