Clearing and Settlement of Derivatives: Is a Code of Conduct Advisable?

This article is a first step to assess whether a self‐regulatory ‘Code of Conduct’, which has been in effect for European equities, should also be extended to derivatives. The aim of the code is to increase competition and customer choice in the European transaction process (trading, clearing and settlement). The article examines whether such a code is advisable for derivatives by evaluating potential market failures and inefficiencies in European derivatives markets. More specifically, the article: a) highlights the main differences in the clearing and settlement procedures of derivatives versus equities; b) outlines current and alternative market infrastructures in derivatives post‐trade markets; and c) evaluates the current level of competition among derivatives exchanges and also between the on‐ and off‐exchange trading segments. The article concludes that if imminent initiatives taken to increase the competitiveness of over‐the‐counter (OTC) derivatives markets vis‐à‐vis the incumbent derivatives exchanges—such as increased clearing house usage and new entry of multilateral trading facilities—are not effective in the near future, a code of conduct could be envisaged. This should entail promoting faster automation of OTC post‐trade processes and ensuring price comparability is maintained between derivatives exchanges.     

Free trade agreements for the environment? Regional economic integration and environmental cooperation in East Asia

Traditionally, it has been argued that increased economic competition through free trade agreements would bring about environmental degradation. This study, however, argues that recent international free trade agreements have tended to enhance environmental cooperation among participating countries. This study has examined the process by which East Asian countries have developed mechanisms for the extant level of regional environmental cooperation, particularly highlighting the reasons for commonalities and differences in regional environmental cooperation between ASEAN and the dominant economies in the region. It finds that three factors particularly matter for developing regional environmental cooperative mechanisms: networks of intergovernmental organizations, the strong willingness of political leaders which is often embodied in national strategies for regionalism and the establishment, and the institutionalized linkage—particularly through FTAs—between trade and the environment. Tracing the process of policy evolution within three groups of countries sheds light on the political conditions under which the four entities involved (the ASEAN, Japan, China, and the Republic of Korea) have produced and strengthened cooperative environmental mechanisms among them along with free trade agreements. Focusing especially on the environmental policy changes in Japan, China, and the ROK associated with the creation of its FTAs with ASEAN, the study concludes that each of free trade agreements has incrementally developed environmental cooperation, especially when integrated into a vision for regional integration.     

Non-Disputing Party Participation in ICSID Disputes: Faux Amici?

Netherlands International Law Review - This article employs a mixed methodological approach to evaluate non-disputing party (NDP) participation by means of amici curiae submissions in investment...     

The Principle of Solidarity and Fairness in Sharing Responsibility: More than Window Dressing?

The lack of fairness in asylum responsibility sharing within the EU has been a persistent problem demanding an urgent solution. This article seeks to inform the on‐going debate on European solidarity instruments from a constitutional law perspective by taking the principle of solidarity and fair sharing of responsibility pursuant to Article 80 TFEU as its reference point. The article sees this principle as an important mechanism in both the enhancement of fairness in responsibility sharing and the protection of refugees. It argues that the combined reading of Article 80 TFEU and the Charter of Fundamental Rights provides a strong reason to doubt the constitutionality of the Dublin III Regulation, and any decision reforming the asylum regime should take this view into account. Despite its limited enforceability, Article 80 TFEU can play an important role as an interpretation tool, in particular in the assessment of the legality of solidarity instruments.     

The Future of International Investment Regulation: Towards a World Investment Organisation?

With growth in foreign investment and in the number of companies investing in foreign countries, the application of general principles of public international law has not been deemed adequate to regulate foreign investment and there is, as yet, no comprehensive international treaty on the regulation of foreign investment. Consequently, states have resorted to bilateral investment treaties (BITs), regional trade and international investment agreements (IIAs) and free trade agreements to supplement and complement the regime of protection for foreign investors. In the absence of an international investment court, states hosting foreign investment or investor states have opted for investor-state dispute settlement mechanism (ISDS). This mechanism has brought about its own challenges to the international law of foreign investment due to inconsistency in the application and interpretation of the key principles of international investment law by such arbitration tribunals, and further, there is no appellate mechanism to bring about some cohesion and consistency in jurisprudence. Therefore, there are various proposals mooted by scholars to address these challenges and they range from tweaks to BITs and IIAs, the creation of an appellate mechanism and the negotiation of a multilateral treaty to proposals for reform of ISDS only. After assessing the merits and demerits of such proposals, this study goes further, arguing for the creation of a World Investment Organisation with a standing mechanism for settlement of investment disputes in order to ensure legal certainty, predictability and the promotion of the flow of foreign investment in a sustainable and responsible manner.

     

No Harm No Foul? Objectivism and the Law of Attempts

Law and Philosophy -     

Entrenched Postseparation Parenting Disputes: The Role of Interparental Hatred?

There is an emerging view that the term “high conflict” oversimplifies the nature of destructive family dynamics, especially with respect to the small but resource‐intensive group of separated parents who remain deeply enmeshed in legal battles and parental acrimony. In this Article we propose that interparental hatred may be a key relationship dynamic driving the behavior of some in this group. We suggest a distinction between two types of interparental hatred: one that arises from responses to separation‐related stresses (reactive hatred) and the other (entrenched hatred) that is indicative of more embedded, dysfunctional interpersonal dynamics and/or personality structures. While reactive hatred is typically time limited and amenable to professional intervention, entrenched hatred tends to overwhelm rationally informed attempts to mediate, negotiate, or even adhere to orders regarding suitable parenting arrangements. We contend that while effective intervention in these cases requires all the generic skills and responses necessary for dealing with highly conflicted disputes, it is also important to name and appropriately challenge interparental hatred when it is detected.     

Found Money? Split-Award Statutes and Settlement of Punitive Damages Cases

We examine the effect of "split-award" statutes (wherein thestate shares a punitive damages award) on equilibrium settlementsand the incentives to go to trial. Splitaward statutes lowersettlement amounts and the likelihood of trial, as both partiesact to cut out the state. We analyze the revenue that split-awardstatutes generate; the revenue-maximizing share is robust tovariations in economic parameters and to whether the state'sshare is gross or net of the plaintiff's attorney's fee. Moreover,these statutes need not deter filings, and their use can encourageplaintiffs' attorneys to pursue weaker cases than would otherwisebe brought.     

Indeterminacy,Ideology and Legitimacy in International Investment Arbitration: Controlling International Private Networks of Legal Governance?

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique - This article connects the insights of post-realist scholarship about radical indeterminacy and...     

The European Community and the Member States in the Dispute Settlement Understanding of the WTO: United or Divided?

Opinion 1/94 of the European Court of Justice determined the competence of the European Community and the Member States to conclude and implement WTO Agreements. Whilst the European Community enjoys exclusive competence to implement the Multilateral Agreements on Trade in Goods, it shares joint competence with the Member States in respect of the General Agreement on Trade in Services and the Agreement on Trade-Related Aspects of Intellectual Property Rights. However, the Court’s recognition of a division of competences between the Community and the Member States in WTO agreements has given rise to many fears that such a division would greatly complicate Community and Member State participation in WTO Agreements, would create many problems for them in doing so and, as a result, would greatly impede their successful participation in the WTO. Given the benefit of a number of years’ experience in the WTO, this paper focuses on the Dispute Settlement Understanding (DSU) of the WTO and addresses the extent to which the division of competences between the Community and the Member States has affected their participation in the DSU. Primarily, it aims to examine the extent to which the provisions of the DSU affect Community and Member State participation in dispute settlement within the WTO. It then analyses the duty of co-operation imposed on the Community and on Member States by the Court of Justice in Opinion 1/94 in the implementation of the WTO Agreements and the degree to which this duty influences their pursuit of dispute settlement. Finally, the paper examines the manner in which Community and Member State dispute settlement proceedings have evolved in practice, the extent to which the division of powers has penetrated dispute settlement proceedings and the manner in which the Community, the Member States and other WTO members have addressed it. In essence, the paper attempts both to highlight some of the more obvious consequences and effects that the internal division of powers between the Community and the Member States has for their participation in the DSU and to suggest some ways in which these consequences may be manipulated for their mutual and successful settlement of disputes.     

Financial regionalism in East Asia： The “Multilateralization” of the Chiang Mai Initiative

The 2008-2009 financial crisis prompted the ASEAN＋3 countries＇ decision to enhance the Chiang Mai Initiative （CMI） and to make it multilateral （CMIM）. The CMI network of bilateral swaps arrangements is going to be substituted by a regional reserve pooling arrangement worth US$120 billion. The aim of this work is to analyse the CMIM, putting it in the wider context of the growing role of Asia in the world economy and of the acceleration of its integration process. We will also assess the impact of the CMIM on the role of the IMF as global provider of financial assistance and as guarantor of international financial stability.     

Trade mark use in transit: EU-phony or cacophony?

Legal context The present article discusses the opinion of Advocate-GeneralJacobs in Case C-405/05 Class International BV v Unilever NVand others, according to which trade mark owners cannot opposethe entry into the European Union of grey market non-Communitygoods placed in external transit, on the grounds of Article5(1) of the Trade Mark Directive, or any equivalent provision,as such entry does not constitute trade mark use. Key points We examine the consistency of this approach withprior case law of the European Court of Justice, namely in theCommission v France, Rioglass, The Polo/Lauren and Rolex casesand draw a parallelism with Council Regulation (EC) 1383/2003. Practical significance We conclude that trade mark owners shouldbe allowed to prohibit the placing in transit of goods whichwould infringe an intellectual property right under the lawof the transit country, unless the owner or consignor of thelitigious goods can undeniably prove that the goods are notdestined for the internal market. Stop press. At the end of the article the authors provide abrief analysis of the European Court of Justice's decision of18th October 2005 in this case.     

Why is the Victimization of Young Latino Adults Higher in New Areas of Settlement?

Objectives

We used multilevel data from the National Crime Victimization Survey (NCVS) to identify factors that account for differences in risk of violent victimization among young Latino adults in new and traditional settlement areas.

Methods

Area-identified NCVS data (2008–2012) were linked with census tract data from the decennial census and American Community Survey to study individual and community contributions to the risk of violent victimization. We analyzed total violence and violence specific to offense types and victim-offender relationship. The analyses were performed adjusting for the complex survey design.

Results

Young Latino adults in new settlement areas have higher victimization rates than their counterparts in traditional areas for total violence and for the majority of violence types studied. Holding constant individual and other contextual factors, Latino population density is a key neighborhood characteristic that explains the observed area differences in victimization, yielding evidence for the hypothesis that co-ethnic support in a community helps protect young Latino adults and contributes to differences in victimization across areas. Also there is evidence that the protective role of Latino population density is stronger for violence involving non-strangers than it is for violence involving strangers. Moreover, we find that the concentration of Latino immigrants, which indicates the neighborhood potential for immigrant revitalization, is another neighborhood factor that protects young Latino adults in both new and traditional settlement areas. However, there is some but limited evidence that the neighborhood-revitalizing role of immigration might be smaller in some contexts (such as some new areas outside central cities), possibly because those areas are heterogeneous in their ability to promote the integration of immigrants.

Conclusions

Our analysis of the NCVS shows the importance of neighborhood factors for the risk of violence among young Latino adults. It provides evidence consistent with co-ethnic support and immigrant revitalization theories. The findings also suggest that the effects of those neighborhood factors may be contingent upon violence type and the context in which they occur. These findings help us understand the difference in the safety of young Latino adults in new and traditional areas.

     

East Meets West in Anti-Money Laundering and Anti-Terrorist Finance: Policy Dialogue and Differentiation on Security, the Timber Trade and ‘Alternative’ Banking

This paper compares and contrasts South East Asian and European Union countries’ perceptions of the priorities for anti money laundering (AML) and anti terrorist finance (ATF) in relation to three industries: security goods and services; the timber trade; and ‘informal’ value transfer and banking services. It might be expected that all countries would equally support each of these aspects of AML/ATF policies, without differentiating between the industries generating the proceeds. As this paper will show, however, historical experiences, contemporary political relations and patterns of trade shape countries’ approaches, resulting in distinctive enthusiasms and reservations. In a nutshell, the EU points most strongly to products and services originating in Asia as posing AML/CTF risks, and locates primary responsibility for monitoring and control as falling within Asia - a projection of risk and responsibility that is reciprocated by Asian countries. Asian countries perceive a need for tighter control of dangerous products exported by the west, for example, small arms and light weapons, and of related money laundering circuits. Asian and European policy makers increasingly articulate concerns over illegal logging and related laundering, however European importers and their governments see responsibilities for this as falling primarily within Asia. Finally, the EU (like the US) perceives high levels of laundering risk in ‘informal’ value transfer/banking services, in which Asian-run businesses have a global competitive advantage. For the future, as the international balance of trade shifts, and as Asia increases its influence in international fora including those concerned with AML/CTF, so the region’s policy preferences may be expected to carry more weight.

The More the Merrier? Hungarian and Romany Minorities in Slovakia

This article discusses some important aspects of thetreatment of minorities in the Republic of Slovakia.It discusses the 1992 Constitution and subsequentdevelopments such as the State language law 1995, therestriction of political rights of Hungarians,educational policies, the setback of EU entry talks,the September 1998 general elections, the Dzurindagovernment's ``De-Meciarization', the 1999 MinorityLanguage Law, and recent electoral legislation. Thespecial condition of the Romany is considered. Theeffectiveness of international mechanisms for theprotection of minority rights (the Organisation forSecurity and Cooperation in Europe, the InternationalCovenant for Civil and Political Rights, the EuropeanConvention of Human Rights, the Framework Conventionfor the Protection of National Minorities) isassessed, as is the involvement of the EU. Finally,the role of the judiciary is reflected upon.     

Old and New Actors in the Italian Drug Trade: Ethnic Succession or Functional Specialization?

The article analyses Italian and foreign organized crime involved in the drug market from two perspectives. The first, called “criminal succession”, assumes that the great presence of foreign criminal groups into this illegal market would represent a menace to the traditional hegemony exercised by Mafia-type associations in Italy. From a different perspective, defined as “functional specialisation”, the involvement of foreign criminal groups in the drug market could also be seen in terms of criminal “labour force” tending to follow the same mechanisms occurring in the general market at large, where immigrants fill low-paying jobs not requested by the local population. Through the analysis of data provided by the Italian Central Antidrug Bureau and recent court records the article tests these two perspectives. In particular, the in-depth analysis of three case studies from northern, central and southern Italy – i.e. Milan, Florence and Naples – has allowed us to identify the main changes that occurred in the drug market since the early 1990s. In effect, in Milan and Florence, we register the emergence of foreign criminal actors in the high- and medium-level positions of the local drug trade, while in Naples, where Camorra clans hold very strong positions, it leaves small areas of autonomy to foreign criminal groups.     

Do daily newspapers of former West and East Germany cover crime in a different way?

The question investigated in the presented paper is whether crime is discussed differently in the media of former East and West Germany, how it is weighted and whether the real crime situation provides an explanation for any differences in press coverage. The study showed that there are no significant differences in the press coverage and that violent crime is not overrepresented. Coverage of offences like robbery, damage to property, sexual assaults or bodily injury, which are also categorized as violent crime, was of average frequency, so that again there was no overrepresentation in the newspapers of the two cities compared in this study (Stuttgart and Dresden). Surprisingly, sexual offences such as rape or sexual abuse played a minor role in the daily newspapers. Further interesting results of the analysis were that offences in the field of "intelligent crime" (e. g. white-collar crime) were of no importance in the print media, whereas the number of reports on crimes for which the general public assumes a higher probability to become a victim itself (e. g. burglary and robbery) was disproportionately high in relation to the recorded number of cases. Reports on drug offences played a more important role in the newspapers analyzed by us than violent crime.