{"title":"Belize’s Green Buyback: A Template for Future Sovereign Debt Restructurings","authors":"Mitu G. Gulati","doi":"10.1093/cmlj/kmab030","DOIUrl":"https://doi.org/10.1093/cmlj/kmab030","url":null,"abstract":"","PeriodicalId":43720,"journal":{"name":"Capital Markets Law Journal","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45362818","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Contract boilerplate generates many benefits for contract users. It also generates costs.
In the past, reformers have attempted to mitigate these costs by drafting model contract language and urging contract users to incorporate this language into their agreements.
This article argues in support of a different approach.
It calls for a replacing of several standard pieces of contract boilerplate with codes that the article dubs ‘Boilerterms’. Instead of writing a standard choice-of-law clause into an agreement, for example, the parties would write ‘Boilerterm COL—Broad (New York)’.
An authoritative guide prepared by experts would clearly define the meaning of the code, thereby making it easier for litigators and judges to interpret it.
The widespread adoption of Boilerterms would mitigate the costs generated by contract boilerplate more effectively than model contract language while preserving the many benefits conferred by that boilerplate.
合同样板为合同用户带来了很多好处。它也会产生成本。在过去，改革者试图通过起草示范合同语言并敦促合同使用者将这种语言纳入他们的协议来降低这些成本。本文支持一种不同的方法。它要求用文章称为“Boilerterms”的代码替换几个标准的合同样板。例如，在协议中不写标准的法律选择条款，双方会写“Boilerterm colbroad (New York)”。专家编写的权威指南将明确界定《治罪法》的含义，从而使诉讼律师和法官更容易对其进行解释。Boilerterms的广泛采用将比示范合同语言更有效地减少合同样板所产生的成本，同时保留样板所带来的许多好处。
{"title":"Boilerterms","authors":"John F Coyle","doi":"10.1093/cmlj/kmab025","DOIUrl":"https://doi.org/10.1093/cmlj/kmab025","url":null,"abstract":"<span><div><div>Key points</div><ul><li>Contract boilerplate generates many benefits for contract users. It also generates costs.</li><li>In the past, reformers have attempted to mitigate these costs by drafting model contract language and urging contract users to incorporate this language into their agreements.</li><li>This article argues in support of a different approach.</li><li>It calls for a replacing of several standard pieces of contract boilerplate with codes that the article dubs ‘Boilerterms’. Instead of writing a standard choice-of-law clause into an agreement, for example, the parties would write ‘Boilerterm COL—Broad (New York)’.</li><li>An authoritative guide prepared by experts would clearly define the meaning of the code, thereby making it easier for litigators and judges to interpret it.</li><li>The widespread adoption of Boilerterms would mitigate the costs generated by contract boilerplate more effectively than model contract language while preserving the many benefits conferred by that boilerplate.</li></ul></div></span>","PeriodicalId":43720,"journal":{"name":"Capital Markets Law Journal","volume":"75 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138540241","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Confronted with eroding market confidence in a country's debt obligations, what's a local politician to do? Major changes to fiscal policies are inevitably controversial back home. Securing financial support from multilateral official sector entities usually involves knuckling under to unpopular economic reforms. But there is one measure all politicians can take quickly and cheaply – cross their hearts, hope to die, and solemnly promise to treat debt service payments as the first, the highest and the most sacred priority in the use of public funds. The question is, what are such promises worth in practice? We argue not much.
{"title":"Nailing the flag to the mast—promises of super-priority in public debt","authors":"M. Gousgounis, G. Gulati, L. Buchheit","doi":"10.1093/cmlj/kmab028","DOIUrl":"https://doi.org/10.1093/cmlj/kmab028","url":null,"abstract":"Confronted with eroding market confidence in a country's debt obligations, what's a local politician to do? Major changes to fiscal policies are inevitably controversial back home. Securing financial support from multilateral official sector entities usually involves knuckling under to unpopular economic reforms. But there is one measure all politicians can take quickly and cheaply – cross their hearts, hope to die, and solemnly promise to treat debt service payments as the first, the highest and the most sacred priority in the use of public funds. The question is, what are such promises worth in practice? We argue not much.","PeriodicalId":43720,"journal":{"name":"Capital Markets Law Journal","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47618326","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Corporate bond defaults in China: legal issues and possible solutions","authors":"W. Fu","doi":"10.1093/cmlj/kmab001","DOIUrl":"https://doi.org/10.1093/cmlj/kmab001","url":null,"abstract":"","PeriodicalId":43720,"journal":{"name":"Capital Markets Law Journal","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-07-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49165637","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Make-wholes in sovereign bonds","authors":"U. Panizza, Mitu G. Gulati","doi":"10.1093/CMLJ/KMAB015","DOIUrl":"https://doi.org/10.1093/CMLJ/KMAB015","url":null,"abstract":"","PeriodicalId":43720,"journal":{"name":"Capital Markets Law Journal","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47294030","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The European Commission published its new Digital Finance Strategy on 24 September 2020. One of the centrepieces of the Strategy is the draft Regulation on Markets in Crypto-Assets (MiCA), designed to provide a comprehensive regulatory framework for digital assets in the EU.
With MiCA the EU Commission has proposed bespoke regulation for utility tokens and stablecoins including payments tokens, asset-backed tokens and ‘significant’ stablecoins (including ‘global stablecoins’). As to investment and securities tokens, the EU Digital Finance Strategy relies on the existing body of EU financial and securities law, with the Prospectus Regulation, the MiFID framework as well as the UCITSD and AIFMD at its core, with the intention to incorporate necessary changes as part of the existing ongoing amendment and review processes.
MiCA provides for a bespoke prospectus regime for crypto-assets, with the issuing of e-money tokens (ie payment tokens), asset-referenced tokens (also known as stablecoins) and crypto-asset services being regulated activities subject to licensing. While supervision of crypto-asset service providers (CASPs) will rest with national authorities, supervision of significant asset-referenced and e-money tokens will rest mainly with the European Banking Authority.
The EU Digital Finance Strategy marks a very important step for the EU in promoting innovation and developing the Single Market. At the same time, while MiCA is an ambitious legislative project, there is room for improvement. First, the scope of MiCA remains uncertain as the draft MiCA does not clearly delineate between usage tokens subject to MiCA and investment tokens subject to EU securities law. Second, a systematic approach to EU law is absent. Thresholds and concepts known from other EU laws should be firmly embedded in MiCA. Third, a framework for supervisory cooperation with regard to truly global stablecoins is missing.
{"title":"The Markets in Crypto-Assets regulation (MiCA) and the EU digital finance strategy","authors":"Zetzsche D, Annunziata F, Arner D, et al.","doi":"10.1093/cmlj/kmab005","DOIUrl":"https://doi.org/10.1093/cmlj/kmab005","url":null,"abstract":"<span><div><div>Key points</div><ul><li>The European Commission published its new Digital Finance Strategy on 24 September 2020. One of the centrepieces of the Strategy is the draft Regulation on Markets in Crypto-Assets (MiCA), designed to provide a comprehensive regulatory framework for digital assets in the EU.</li><li>With MiCA the EU Commission has proposed bespoke regulation for utility tokens and stablecoins including payments tokens, asset-backed tokens and ‘significant’ stablecoins (including ‘global stablecoins’). As to investment and securities tokens, the EU Digital Finance Strategy relies on the existing body of EU financial and securities law, with the Prospectus Regulation, the MiFID framework as well as the UCITSD and AIFMD at its core, with the intention to incorporate necessary changes as part of the existing ongoing amendment and review processes.</li><li>MiCA provides for a bespoke prospectus regime for crypto-assets, with the issuing of e-money tokens (ie payment tokens), asset-referenced tokens (also known as stablecoins) and crypto-asset services being regulated activities subject to licensing. While supervision of crypto-asset service providers (CASPs) will rest with national authorities, supervision of significant asset-referenced and e-money tokens will rest mainly with the European Banking Authority.</li><li>The EU Digital Finance Strategy marks a very important step for the EU in promoting innovation and developing the Single Market. At the same time, while MiCA is an ambitious legislative project, there is room for improvement. First, the scope of MiCA remains uncertain as the draft MiCA does not clearly delineate between usage tokens subject to MiCA and investment tokens subject to EU securities law. Second, a systematic approach to EU law is absent. Thresholds and concepts known from other EU laws should be firmly embedded in MiCA. Third, a framework for supervisory cooperation with regard to truly global stablecoins is missing.</li></ul></div></span>","PeriodicalId":43720,"journal":{"name":"Capital Markets Law Journal","volume":"52 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138540278","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Share buybacks have been widely used around the world for some time now. While the financial arguments for and against stock repurchases are still in the balance, there may be legal restrictions with respect to market abuse and capital maintenance, as was once the case in the USA and still is in the UK.
A recent Singapore decision suggested that buybacks to counter a short-selling attack may constitute market manipulation and this was reflected in a Singapore Exchange warning to listed companies against both insider trading and market manipulation with share repurchases. It was suggested that companies should look to repurchase their shares at the lowest price possible and also not at the close of the trading day. Empirical evidence supports those concerns.
Aside from securities regulation, many Commonwealth jurisdictions including Singapore and the UK, and the EU, continue to have corporate law rules on capital maintenance. The most important of these is the need for a solvency statement when a buyback is out of capital. However, there is the possibility of further relaxation of these rules in favour of the American position, which relies on fraudulent conveyance rules to control the process. But, while strictly unnecessary, the reality is that those rules are in turn usually dependent on a finding of insolvency, which in today’s climate is hard to prove ex post (and conversely costly to show ex ante with solvency statements).
It is suggested that the proper purpose rule, which requires directors to use powers that they have been given fairly when it comes to internal changes to the constitutional balance within a corporation, can explain the basis for existing securities regulation and capital maintenance rules. But even where these specific rules do not exist, it can provide guidance in the area of share buybacks generally, and buttress fraudulent conveyance rules.
The duty to act properly towards the ‘reasonable shareholder’ with respect to share repurchases is to buyback at the lowest possible price in the market when the company does not require funding given present needs and future exigencies. This seeks to maintain the priority structures that have allowed the company to succeed more than other business vehicles, and is different from present day talk of corporate purposes which may be too indeterminate.
{"title":"Rethinking share repurchases","authors":"Hans Tjio","doi":"10.1093/cmlj/kmab009","DOIUrl":"https://doi.org/10.1093/cmlj/kmab009","url":null,"abstract":"<span><div><div>Key points</div><ul><li>Share buybacks have been widely used around the world for some time now. While the financial arguments for and against stock repurchases are still in the balance, there may be legal restrictions with respect to market abuse and capital maintenance, as was once the case in the USA and still is in the UK.</li><li>A recent Singapore decision suggested that buybacks to counter a short-selling attack may constitute market manipulation and this was reflected in a Singapore Exchange warning to listed companies against both insider trading and market manipulation with share repurchases. It was suggested that companies should look to repurchase their shares at the lowest price possible and also not at the close of the trading day. Empirical evidence supports those concerns.</li><li>Aside from securities regulation, many Commonwealth jurisdictions including Singapore and the UK, and the EU, continue to have corporate law rules on capital maintenance. The most important of these is the need for a solvency statement when a buyback is out of capital. However, there is the possibility of further relaxation of these rules in favour of the American position, which relies on fraudulent conveyance rules to control the process. But, while strictly unnecessary, the reality is that those rules are in turn usually dependent on a finding of insolvency, which in today’s climate is hard to prove <span style=\"font-style:italic;\">ex post</span> (and conversely costly to show <span style=\"font-style:italic;\">ex ante</span> with solvency statements).</li><li>It is suggested that the proper purpose rule, which requires directors to use powers that they have been given fairly when it comes to internal changes to the constitutional balance within a corporation, can explain the basis for existing securities regulation and capital maintenance rules. But even where these specific rules do not exist, it can provide guidance in the area of share buybacks generally, and buttress fraudulent conveyance rules.</li><li>The duty to act properly towards the ‘reasonable shareholder’ with respect to share repurchases is to buyback at the lowest possible price in the market when the company does not require funding given present needs and future exigencies. This seeks to maintain the priority structures that have allowed the company to succeed more than other business vehicles, and is different from present day talk of corporate purposes which may be too indeterminate.</li></ul></div></span>","PeriodicalId":43720,"journal":{"name":"Capital Markets Law Journal","volume":"186 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138540238","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
While ‘one share, one vote’ has been widely recognized as a bedrock principle of good corporate governance in protecting shareholders’ basic rights, some regulators consider this principle to be too inflexible to cater for investors with different risk appetites and issuers with different profiles. For example, entrepreneurs may wish to raise equity capital to finance some promising growth of their companies, but at the same time, they do not want to surrender too much control of their companies to those outsiders who may have different views on how to operate the companies. If all stock exchanges stick to the ‘one share, one vote’ principle, these entrepreneurs may prefer not to offer shares of their companies to the public and simply shelve those growth projects indefinitely until they can solicit sufficient funding from other sources. In this case, economies may suffer and investors may lose promising investment opportunities with handsome returns. Key points
{"title":"Allowing dual class share structure companies in the Premium listing segment of the London Stock Exchange: appreciating international experiences and recognizing local conditions","authors":"J. Ho","doi":"10.1093/CMLJ/KMAB016","DOIUrl":"https://doi.org/10.1093/CMLJ/KMAB016","url":null,"abstract":"While ‘one share, one vote’ has been widely recognized as a bedrock principle of good corporate governance in protecting shareholders’ basic rights, some regulators consider this principle to be too inflexible to cater for investors with different risk appetites and issuers with different profiles. For example, entrepreneurs may wish to raise equity capital to finance some promising growth of their companies, but at the same time, they do not want to surrender too much control of their companies to those outsiders who may have different views on how to operate the companies. If all stock exchanges stick to the ‘one share, one vote’ principle, these entrepreneurs may prefer not to offer shares of their companies to the public and simply shelve those growth projects indefinitely until they can solicit sufficient funding from other sources. In this case, economies may suffer and investors may lose promising investment opportunities with handsome returns. Key points","PeriodicalId":43720,"journal":{"name":"Capital Markets Law Journal","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48043770","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Are dedicated international financial tribunals like buses? To paraphrase the familiar saying, you wait ages for one—and then three (or even nine!) come along at roughly the same time.
{"title":"Editors’ Note","authors":"Golden J.","doi":"10.1093/cmlj/kmab021","DOIUrl":"https://doi.org/10.1093/cmlj/kmab021","url":null,"abstract":"<span>Are dedicated international financial tribunals like buses? To paraphrase the familiar saying, you wait ages for one—and then three (or even nine!) come along at roughly the same time.</span>","PeriodicalId":43720,"journal":{"name":"Capital Markets Law Journal","volume":"70 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138540272","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Empire Strikes Back: Derivatives disputes, the financial list, test case scheme and arbitration","authors":"Sabur Malik","doi":"10.1093/cmlj/kmab017","DOIUrl":"https://doi.org/10.1093/cmlj/kmab017","url":null,"abstract":"","PeriodicalId":43720,"journal":{"name":"Capital Markets Law Journal","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48231692","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
扫码关注我们
求助内容：
应助结果提醒方式：
京公网安备 11010802042870号