Current Issue

  • Volume 30,
  • Number 1 -
  • Fall 2019


Oligarchs, Foreign Powers, and the Oppressed Minority: Regulating Corporate Control in Latin America
Carlos Berdejó

Corporate law and governance scholarship have traditionally focused on understanding the agency costs that result from unresolved conflicts of interest between shareholders and management. This agency problem becomes trivial when corporate ownership is concentrated, as is the case in many countries outside the United States. In this context, the more pressing agency problem results from conflicts of interest between minority shareholders and controlling shareholders seeking to divert resources at the expense of the former.

When ownership is concentrated, legal rules must seek to protect minority shareholders from controlling shareholders, rather than shareholders from managers. In many countries, minority shareholders are afforded this protection via tag-along rights, i.e., the right to be bought out by any person that seeks to acquire a controlling stake in a company. The effectiveness of such a mandatory bid rule has been the subject of vigorous debate. This debate, however, has centered on comparing the approaches followed by the United States and the European Union in regulating sale of control transactions.

Latin America offers an unexplored setting in which to address these long-standing issues. The Article starts with an examination of the shareholder structure of Latin American companies, which are characterized by high levels of ownership concentration. Families and foreign entities play a dominant role, a remarkable reflection of the region’s colonial past. Latin American countries have adopted unique approaches in sales of control that attempt to protect minority shareholders without deterring some of the efficient transactions that the traditional mandatory bid rule prevents. A preliminary comparison suggests these local rules outperform the U.S. market rule and the European mandatory bid rule.

Call It What It Is: Genocide Through Male Rape and Sexual Violence in the Former Yugoslavia and Rwanda
Claire Bradford Di Caro

Genocide and its various iterations have repeatedly been contextualized in narratives assuming that victims are female. Part of this is due to the irrefutable data that shows the overwhelming number of victims are female. The United Nations 1948 treaty known as the Convention on the Prevention and Punishment of the Crime of Genocide provided for a definition for genocide that purposefully included other forms of genocide, particularly genocidal rape and sexual violence. Yet the two most comprehensive genocidal tribunals, the International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), refrained from charging criminals with genocide when their victims are male. This Article will address how males, similarly to female, have been victims of genocide in the forms of genocidal rape and sexual violence, and will argue that the ICTY and ICTR should have used the 1948 Convention’s definition of genocide to achieve the goals of the United Nations.

The Rise of Nationalism in International Finance: The Perennial Lure of Populism in International Financial Relations
Federico Lupo-Pasini

Populism and nationalism are key drivers of current international economic relations, affecting almost all aspects of foreign economic policy. After almost four decades of cooperation in international financial relations, recent events suggest that we are now potentially entering a new phase of progressive disengagement. This new era would be dominated by the explicit need to safeguard domestic interests, in which regulatory barriers to cross-border finance will be more pronounced and curtailing the expansion of global financial markets will no longer be considered a policy taboo. This Article presents a brief history of financial nationalism and discusses some of its more recent phenomena around the world, from the regulatory conflicts between the European Union and the United Kingdom over the control of the European derivatives clearing market, to the attacks on central banks’ independence, or the open distrust of western regulators against the Chinese FinTech giants. In contrast to other phenomena of economic populism, like trade protectionism, it is very difficult to theorize a single explanation behind this new protectionist push. Financial nationalism is neither an economic ideology nor a structured response to the downsides of economic globalization. More simply, it is the manifestation of a multiplicity of policy needs, which invariably lead to a reconfiguration of the inherent regulatory tradeoff between the protection of national sovereignty and the expansion of global markets; this time favoring the former.

It’s Not the Robot’s Fault! Russian and American Perspectives on Responsibility for Robot Harms
Bryant Walker Smith & Andrey Neznamov

As automated vehicles, personal robots, and other cyberphysical systems enter our world, law must confront important questions about civil liability for harms caused by these systems. Two legal scholars—one from Russia and one from the United States—come together to tackle these questions with an integrated approach that draws on the law of both countries.


Sail We Must: Why ICSID Proceedings Should Not Lie at Anchor for Arbitrator Challenges
Natalie Pita

This Article shows that the International Centre for Settlement of Investment Disputes’ (ICSID) current rules for arbitration, which automatically suspend the arbitration proceeds, are direct contributors to the high costs and long proceedings in ICSID. The Articles also argues that failing to eliminate the automatic suspension of proceedings is simply putting off a change that will inevitably need to be made. Following complaints that investment arbitrations were too costly and too lengthy, ICSID finally began addressing the issue of arbitrator disqualifications by initiating a round of amendments in October 2016. ICSID has proposed two different remedies to this problem, which could replace the original rule: the first proposal would provide a much-needed increase in ICSID’s efficiency, but the second proposal is little more than an entrenchment of the status quo. ICSID should adopt a slightly modified version of the first proposal to continue the proceedings in the face of arbitrator challenges.