Jodie A. Kirshner

A Third Way: Regional Restructuring and the Societas Europaea

The Societas Europaea (SE) harmonized a minimum of company law and assigned employee representation to a supplementary negotiation process. Commentators predicted that it would introduce cross-border regulatory competition to the EU. Others suggested that companies would choose the SE over other national corporate forms, in order to moderate the requirements of mandatory employee representation. This paper reports case-study evidence to argue that companies are utilizing the form in a third, more significant way: to facilitate within-group restructurings that make regulation by a single supervisor possible. Their actions generate pressure for the unification of additional areas of law and the development of new regional regulatory systems. Empowering the SE would therefore lead to increased integration of corporate oversight within Europe.

The (False) Conflict between Due Process Rights and Universalism in Cross-Border Insolvency

In Rubin and another v Eurofinance SA [2012] UKSC 46, the Supreme Court championed traditional English due-process protections to resolve a conflict between the rules applicable to enforcing foreign judgments and the principles guiding cross-border insolvencies. In doing so, the Supreme Court dealt a setback to aspirations for universalism in multinational insolvency proceedings, in which one court, using one set of rules, would adjudicate every claim. The Supreme Court, however, need not have sacrificed universalist aims in order to defend due process. An alternative approach could have achieved both goals.

Why is the U.S. Abdicating the Policing of Multinational Corporations to Europe?: Extraterritoriality, Sovereignty, and the Alien Tort Statute

The United States has policed the multinational effects of multinational corporations more aggressively than any other coun-try, but recent decisions under the Alien Tort Statute indicate that it is now backtracking. Europe, paradoxically, is moving in the other direction. Why do some countries retract extraterritorial jurisdiction while others step forward? The article traces the opposing trends through corporate human rights cases and suggests that the answer may lie in attitudes towards national sovereignty. The developments raise important questions regarding the position of the United States in a globalizing world and its role in upholding international norms.

Legal Implementation and Management of Infrastructure Financing Models: Trade-Offs between Risk and Maturity

Many economies have difficulty financing infrastructure development: Bank loans of the long tenure necessary pose currency and maturity risks, and stable capital markets require robust legal foundations. Shortfalls in infrastructure financing, however, reduce the quality of life for citizens and inhibit the productive capacity of economies. Intermediate financing models therefore must sustain private financing in infrastructure projects in economies in which legal reforms remain ongoing. Previous studies have explored possible structures for these models. The studies, however, have not considered the legal infrastructure necessary to implement and support these financing techniques. This paper analyzes the tradeoffs that intermediate models for financing infrastructure present, in terms of augmenting the availability of long-term capital versus managing its risks. The paper explores potential fault lines in each model, and the necessary role for law in each. The Bank for International Settlements provided grant funding to support the research underlying this paper, and the Bank will use the research to inform its work related to infrastructure finance and advice to central banks.