{"title":"The $900 Million Mistake: In re Citibank August 11, 2020 Wire Transfers (SDNY 16 February 2021)","authors":"É. Fontenay","doi":"10.1093/cmlj/kmab019","DOIUrl":"https://doi.org/10.1093/cmlj/kmab019","url":null,"abstract":"","PeriodicalId":43720,"journal":{"name":"Capital Markets Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43132698","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":"Why did these standard forms change so quickly?","authors":"Mitu G. Gulati","doi":"10.1093/CMLJ/KMAB020","DOIUrl":"https://doi.org/10.1093/CMLJ/KMAB020","url":null,"abstract":"","PeriodicalId":43720,"journal":{"name":"Capital Markets Law Journal","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49333301","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":"CACs at work: what next? Lessons from the Argentine and Ecuadorian 2020 debt restructurings","authors":"A. Cruz, Ignacio Lagos","doi":"10.1093/CMLJ/KMAB006","DOIUrl":"https://doi.org/10.1093/CMLJ/KMAB006","url":null,"abstract":"","PeriodicalId":43720,"journal":{"name":"Capital Markets Law Journal","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48202197","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":"A comparison of investors’ protection in different securities holding systems and the legal implications of direct and indirect holding: a focus on China’s central securities depository legal position","authors":"Fei Nie, M. Bagheri","doi":"10.1093/CMLJ/KMAB004","DOIUrl":"https://doi.org/10.1093/CMLJ/KMAB004","url":null,"abstract":"","PeriodicalId":43720,"journal":{"name":"Capital Markets Law Journal","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-04-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CMLJ/KMAB004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44275229","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 term ‘hidden sovereign finance’ refers to sovereign debt transactions in favour of a central government, sub-state entity or state-owned enterprise, whose entire existence or whose terms have not been fully disclosed in violation of local administrative or constitutional requirements.
The phenomenon was first reported with regard to the Mozambique hidden loans case, but it likely extends beyond that.
Lenders include private banks, state-owned banks and commodity traders. Products include loans, government guarantees and trade financing schemes linked to commodities exports.
New voluntary transparency standards for lenders, including the ‘G20 Voluntary Principles for Debt Transparency’, encourage lenders to disclose a large part of the loans and guarantees to sovereigns and sub-sovereigns.
As international contracts, hidden financing deals can be litigated in commercial courts. The principles of capacity and authority can, under certain circumstances, invalidate a contract signed in violation of the borrower’s law.
Corruption can sometimes be an additional factor in the decision not to disclose the debt transaction.
{"title":"Hidden sovereign finance","authors":"Lupo-Pasini F.","doi":"10.1093/cmlj/kmab002","DOIUrl":"https://doi.org/10.1093/cmlj/kmab002","url":null,"abstract":"<span><div><div>Key points</div><ul><li>The term ‘hidden sovereign finance’ refers to sovereign debt transactions in favour of a central government, sub-state entity or state-owned enterprise, whose entire existence or whose terms have not been fully disclosed in violation of local administrative or constitutional requirements.</li><li>The phenomenon was first reported with regard to the Mozambique hidden loans case, but it likely extends beyond that.</li><li>Lenders include private banks, state-owned banks and commodity traders. Products include loans, government guarantees and trade financing schemes linked to commodities exports.</li><li>New voluntary transparency standards for lenders, including the ‘G20 Voluntary Principles for Debt Transparency’, encourage lenders to disclose a large part of the loans and guarantees to sovereigns and sub-sovereigns.</li><li>As international contracts, hidden financing deals can be litigated in commercial courts. The principles of capacity and authority can, under certain circumstances, invalidate a contract signed in violation of the borrower’s law.</li><li>Corruption can sometimes be an additional factor in the decision not to disclose the debt transaction.</li></ul></div></span>","PeriodicalId":43720,"journal":{"name":"Capital Markets Law Journal","volume":"7 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-04-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138540240","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}
Recent scandals in the sovereign debt market have highlighted the risks associated with hidden debt transactions. These are sovereign debt transactions in favor of a central government, sub-state entity or state-owned enterprise, whose entire existence or whose terms have not been fully disclosed in violation of local administrative or constitutional requirements. The phenomenon was first reported with regard to the Mozambique hidden loans case, but it likely extends to many other countries.
The multifaceted nature of this phenomenon makes it difficult to provide a coherent picture. Lenders involved in hidden debt include private banks, state-owned banks, governments, and commodity traders. Products include loans, government guarantees, derivatives, and trade financing schemes linked to commodities exports. The goal of the paper is to provide a framework to analyze the legal and regulatory landscape applicable to these transactions with specific focus on the legal obligations of lenders.
At present, there are a number of voluntary standards and guidelines for lenders. These include UNCTAD’s Principles on Promoting Responsible Sovereign Lending and Borrowing, and the 2020 IIF/G20 Voluntary Principles for Debt Transparency. This essay argues that hidden sovereign finance is a multifaceted legal problem, which presents three distinct components: the violation of the borrower’s laws governing public financing, the possible presence of corruption, and the active hiding of the transaction. This means that any effective policy to tame this phenomenon must rely on these three pillars: civil litigation in commercial courts, criminal prosecution of corruption, and loans disclosure to put sovereign finance under closer public scrutiny. In order to make the analysis simpler, I focus on English law and on the practice of English courts.
{"title":"Hidden Sovereign Finance","authors":"Federico Lupo-Pasini","doi":"10.2139/ssrn.3821571","DOIUrl":"https://doi.org/10.2139/ssrn.3821571","url":null,"abstract":"Recent scandals in the sovereign debt market have highlighted the risks associated with hidden debt transactions. These are sovereign debt transactions in favor of a central government, sub-state entity or state-owned enterprise, whose entire existence or whose terms have not been fully disclosed in violation of local administrative or constitutional requirements. The phenomenon was first reported with regard to the Mozambique hidden loans case, but it likely extends to many other countries.<br><br>The multifaceted nature of this phenomenon makes it difficult to provide a coherent picture. Lenders involved in hidden debt include private banks, state-owned banks, governments, and commodity traders. Products include loans, government guarantees, derivatives, and trade financing schemes linked to commodities exports. The goal of the paper is to provide a framework to analyze the legal and regulatory landscape applicable to these transactions with specific focus on the legal obligations of lenders.<br><br>At present, there are a number of voluntary standards and guidelines for lenders. These include UNCTAD’s Principles on Promoting Responsible Sovereign Lending and Borrowing, and the 2020 IIF/G20 Voluntary Principles for Debt Transparency. This essay argues that hidden sovereign finance is a multifaceted legal problem, which presents three distinct components: the violation of the borrower’s laws governing public financing, the possible presence of corruption, and the active hiding of the transaction. This means that any effective policy to tame this phenomenon must rely on these three pillars: civil litigation in commercial courts, criminal prosecution of corruption, and loans disclosure to put sovereign finance under closer public scrutiny. In order to make the analysis simpler, I focus on English law and on the practice of English courts.","PeriodicalId":43720,"journal":{"name":"Capital Markets Law Journal","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-04-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45630207","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}
In many ways, this first issue of 2021 has a common theme—the quest for certainty. This chimes well with the current uncertain times and the very uncertain future that we are facing. There will be a great deal of searching for certainty—as to the efficacy of vaccines, how can we save jobs, how can we resolve the vast debts that have been accumulated during the crisis, how we can cope with climate change and so on. It is, therefore, perhaps appropriate that this issue of CMLJ chronicles the continuing quest for certainty in the context of capital markets law.
{"title":"Editors’ Note","authors":"","doi":"10.1093/cmlj/kmaa033","DOIUrl":"https://doi.org/10.1093/cmlj/kmaa033","url":null,"abstract":"<span>In many ways, this first issue of 2021 has a common theme—the quest for certainty. This chimes well with the current uncertain times and the very uncertain future that we are facing. There will be a great deal of searching for certainty—as to the efficacy of vaccines, how can we save jobs, how can we resolve the vast debts that have been accumulated during the crisis, how we can cope with climate change and so on. It is, therefore, perhaps appropriate that this issue of <span style=\"font-style:italic;\">CMLJ</span> chronicles the continuing quest for certainty in the context of capital markets law.</span>","PeriodicalId":43720,"journal":{"name":"Capital Markets Law Journal","volume":"188 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138540239","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}
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