In association with the International Commission of Jurists

Symposia

11 Feb

[The following summary is the abstract from Universal Exceptionalism in International Law by Anu Bradford (an Assistant Professor of Law at the University of Chicago Law School) & Eric A. Posner (the Kirkland & Ellis Professor of Law at the University of Chicago Law School).] A trope of international law scholarship is that the United States is an “exceptionalist” nation, one...

|
10 Feb

[Zenichi Shishido, a Professor at the Graduate School of International Corporate Strategy, Hitotsubashi University, responds to John Armour, Jack B. Jacobs and Curtis J. Milhaupt, The Evolution of Hostile Takeover Regimes in Developed and Emerging Markets: An Analytical Framework] It is a great pleasure to be able to comment on Armour, Jacobs, & Milhaupt’s excellent analytical, comparative study on a major issue of corporate governance. The article is focused on hostile takeover regimes and, at the same time, covers wide areas of the world, including three developed and three emerging capital markets. It is also important to note that they provide an analytical framework for analyzing different modes of business law reform in general, from the perspective of demand- and supply-side factors, which could be applied to a wide range of legal reforms. The article starts by raising a good question of why the regulatory responses to hostile takeovers are very different among the three countries who share the similar capital markets (the United Kingdom, the United States and Japan).
|
10 Feb

[The following summary is the abstract from The Evolution of Hostile Takeover Regimes in Developed and Emerging Markets: An Analytical Framework by John Armour (the Hogan Lovells Professor of Law and Finance at the University of Oxford and a Fellow of the ECGI), Jack B. Jacobs (a Justice of the Supreme Court of Delaware) & Curtis J. Milhaupt (the Parker Professor of Comparative Corporate Law and Fuyo Professor of Japanese Law at Columbia Law School.).]
In each of the three largest economies with dispersed ownership of public companies—the United States, the United Kingdom, and Japan—hostile takeovers emerged under a common set of circumstances. Yet the national regulatory responses to these new market developments diverged substantially. In the United States, the Delaware judiciary became the principal source and enforcer of rules on hostile takeovers. These rules give substantial discretion to target company boards in responding to unsolicited bids. In the United Kingdom, by contrast, a private body consisting of market professionals was formed to adopt and enforce the rules on hostile bids and defenses. In contrast to those of the United States, the U.K. rules give the shareholders primary decisionmaking authority in responding to hostile takeover attempts. The hostile takeover regime in Japan, which developed recently and is still evolving, combines substantive rules with elements drawn from both the United States (Delaware) and the United Kingdom, while adding distinctive elements, including an independent enforcement role for Japan’s stock exchange. This Article provides an analytical framework for business law development to explain the diversity in hostile takeover regimes in these three countries.
|
09 Feb

[Gabriella Blum, author of On a Differential Law of War, responds to Kevin Jon Heller] First of all, let me express my thanks to Professor Heller for his exceptionally careful and thoughtful reading, as well as for his insightful commentary. It is also a very generous reading, for which I am grateful. I am especially pleased at the opportunity to respond to his comments, as I think they raise a crucial issue. The main theme of Prof. Heller’s commentary is the difficulty, perhaps impossibility, of maintaining the separation between the jus in bello and the jus ad bellum. The notion that the rules of war should apply equally to all sides – regardless of whether any party’s entry into the war was right or wrong at the outset – has been a feature of Just War doctrine since Grotius (who himself built on the Scholastics), but remains intensely debated even today. Prof. Heller illustrates persuasively how, as we consider raising the humanitarian obligations of stronger parties in wartime (thereby importing greater moral content, in terms of our theory of global justice, into IHL itself), ignoring the comparative justness of the parties’ causes becomes even less normatively attractive.
|
09 Feb

[Kevin Jon Heller, a Senior Lecturer at the University of Melbourne Law School, responds to Gabriella Blum, On a Differential Law of War]* Blum’s normative analysis of the desirability of common-but-differential responsibilities in IHL is exceptionally powerful, and I agree with most of her conclusions. I have written a formal response to her essay that will be published online by HILJ; here I want to briefly mention the aspect of her essay that I find most intriguing: namely, its implications for the distinction – fundamental to IHL – between the jus ad bellum and the jus in bello. Blum claims that, “in remaining loyal to the skepticism of IHL with regard to dependence on jus ad bellum,” she “ignore[s] the question of whether the parties are conducting a just or unjust war.” Her essay however, indicates that her loyalties are divided at best. She openly acknowledges, for example, that there “may not be valid reasons to maintain that distinction” when considering the corrective-justice rationale for CDRs, because identifying the “causes of suffering” sufficient to trigger the rationale “may be inextricable from the causes of the war and its justification.” Similarly, although the frequency with which states go to war is a jus ad bellum consideration, Blum accepts that incorporating CDRs into IHL will have a powerful effect on the utilitarian calculus that states use to determine whether they will use armed force, because “[i]f CDRs raise the bar for stronger parties, these states may calculate the costs of war differently and exercise further caution against the use of military force to begin with,” while “the greater constraints on stronger parties might encourage weaker parties, believing they stood a greater chance of success, to initiate conflicts, thereby increasing the overall incidence of violence.” Blum’s failure to live up to her claim to keep the jus ad bellum and jus in bello separate is, I think, a feature not a bug of her essay.
|
09 Feb

[Gabriella Blum, an Associate Professor of Law at Harvard Law School, describes her recently published article On a Differential Law of War] Should the United States, as the strongest military power in the world, be bound by stricter humanitarian constraints than its weaker adversaries? Would holding the U.S. to higher standards than the Taliban, Iraqi insurgents, or the North Korean army yield overall greater humanitarian welfare or be otherwise justified on the basis of international justice theories? Or would it simply be another attempt at tying American hands, a form of “lawfare”? The paper offers an analytical framework through which to examine these questions. It begins from the observation that the current system of international humanitarian law (IHL) builds on the principle of the equal application of the law—the uniform and generic treatment of all belligerents on the battlefield according to the same rules and principles, and regardless of any disparity in power.. Yet regulation has taken a different path in some other areas of international law—most notably, international environmental law (IEL) and international trade law (ITL)—by linking obligations with respective capabilities. This linkage has been accomplished in several ways: by defining obligations with reference to resources, exempting weaker parties from compliance with certain obligations altogether, and even ordering more powerful parties to extend material assistance to weaker ones. As a group, these types of unequal obligations have been called “Common-but-Differentiated Responsibilities” (CDRs).
|
08 Feb

[David Schleicher, author of What If Europe Held an Election and No One Cared?, responds to Erin F. Delaney and Samuel Issacharoff] I would like to again thank Erin Delaney and Samuel Issacharoff for their kind if skeptical response to my paper. Their praise is particularly appreciated as Professor Issacharoff's brilliant work on election law has been, and remains, an inspiration for my own scholarship. And their criticisms are well taken, even if I disagree with some of them. They make three basic points, which I’ll address in turn. First, they argue that the European Parliament (EP) is not the only repository of democratic responsiveness in the European Union (EU), and that my claim that pan-European electoral competition in EP elections is necessary for the EU to achieve the balance between elite, national and democratic power called for in its institutional set-up is overstated. Delaney and Issacharoff point to new powers given to national parliaments as evidence that key figures in the EU might not really want – or are least unsure about the value of – real political competition at the European level, and have turned to other tools for solving the democratic deficit. It is certainly true that there are lots of forms of democratic engagement inside the ever-more complicated EU policy-making apparatus. So there is something to this point. However, EU treaties have continuously increased the power of the EP, and the rise of the EP, along with the introduction of qualified majority voting in the Council, have been the two most important institutional changes in the EU over the last 20 or so years.
|
08 Feb

[Erin F. Delaney, a Research Fellow at Columbia Law School (she holds a Ph.D. from Cambridge University and a J.D. from the NYU School of Law), & Samuel Issacharoff, the Reiss Professor of Constitutional Law at New York University School of Law, respond to David Schleicher, What If Europe Held an Election and No One Cared?]

Eurodemocracy

Multilevel democracy is difficult. Voters have limited time and even less information. Political parties provide the indispensable integrative mechanism for the polity and bring order to the chaotic political marketplace. But parties form around core political concerns, and national parties translate poorly across different levels of government. In this article, David Schleicher turns to the European Union and perceptively analyzes the failure to generate meaningful Europe-wide political parties and campaigns as symptomatic of many forms of multilevel democracy, and thus perhaps less distinctly European. He takes the analytic framework he honed with regard to the absence of robust partisan competition at the local level and directs it now to political institutions that pale beside vigorous national-level politics – specifically, the European Parliament, an institution which inspires mostly apathy and neglect in European voters. The result is a proposal to jigger the institutional prerequisites for EP representation in order to incentivize cross-European political organization and politics. What emerges is creative and provocative.
|
08 Feb

[David Schleicher, an Associate Professor of Law at George Mason University School of Law, describes his recently published article What If Europe Held an Election and No One Cared?] So, to start, I would like to thank my editors at the Harvard International Law Journal and the good people here at Opinio Juris for providing this forum. And I would particularly like to thank Erin Delaney and Samuel Issacharoff for writing a response to my paper. I’m looking forward to hearing your responses as well. My paper, What If Europe Held an Election and No One Cared?, examines the difficulties the European Union (EU) has had in introducing direct democratic representation into its law-making process. In so doing, it provides an explanation for why multi-level political systems frequently feature a common type of democratic failure. Elections at non-national levels of government (ranging from the pan-European elections I discuss in the paper to state and city legislative elections in the U.S.) regularly fail to provide much in the way of democratic accountability because voters treat them as a referendum on national political figures while paying little attention to the effect they will have on local, or supra-national, public policy. In the paper, I argue this is a result of "mismatch," or an election law system that causes (or doesn't discourage) a lack of fit between the governmental level at which political party systems are organized and where elections are held. Looking at the EU provides a window into this endemic problem for multi-level democracies. So, some background:
|
07 Feb

[Pierre-Hugues Verdier, author of Mutual Recognition in International Finance, responds to the comments by Stavros Gadinis and Eric Pan] I would first like to thank Professors Pan and Gadinis for their generous and insightful comments on my article.  While it is impossible to offer a full response in this forum, I would like to offer some thoughts on three salient points. First, as Professor Pan correctly points out, financial cooperation arrangements that share important features of mutual recognition have existed for decades.  However, I believe the arrangements described in the article constitute a significant development relative to those prior approaches.  Take, for instance, the CFTC's acceptance of foreign trading screens and PCAOB's reliance on foreign auditors. 
|
07 Feb

[Eric Pan, an Associate Professor of Law and Director, The Samuel and Ronnie Heyman Center on Corporate Governance, responds to Pierre-Hugues Verdier, Mutual Recognition in International Finance] Pierre-Hugues Verdier has written an extremely important paper about one of the key regulatory strategies in international finance.  As Prof. Verdier has noted, many jurisdictions have applied mutual recognition arrangements to provide cross-border access to financial services providers, issuers and investors, and he skillfully analyzes the challenges facing mutual recognition arrangements.  In order to provoke a further discussion about the importance of mutual recognition in international financial regulation, I wish to draw out some of the points made by Prof. Verdier and express additional thoughts regarding how mutual recognition arrangements have been used in the past, the implications for future mutual recognition arrangements and the main challenges facing mutual recognition arrangements.
|
07 Feb

[Stavros Gadinis, an Assistant Professor of Law at U.C. Berkeley School of Law, responds to Pierre-Hugues Verdier, Mutual Recognition in International Finance] Pierre Verdier's piece, "Mutual Recognition in International Finance," centers on a fundamental question in this area of the law: how can regulators from one state admit inside their borders institutions and products shaped under another state's regime, without imposing additional requirements to admission? Lifting regulatory barriers is the primary step towards a truly global financial market, because it removes high transaction costs that constrain capital flows. However, opening the regulatory gateways to foreigners is a matter of heated debate, which typically evokes rational objections as well as deep-rooted fears: do these foreign institutions and products provide to investors similar safeguards to those honed after decades of domestic regulation? Will the sudden influx of - perhaps more cost-effective - foreign providers put the domestic industry in a competitive disadvantage? Could the admission of foreigners ultimately undermine the importance of domestic regulators by providing an official back-door channel into a closely guarded domestic market?
|