By Kate Barth
During the tumultuous fiscal years of the past few decades, the World Bank, acting in its capacity as a lender of last resort, granted unsecured loans to debt-ridden sovereigns. Instead of taking a lien over the state’s assets, the World Bank protected its interests via a broadly worded Negative Pledge Clause. This clause ensures that any lien created on any public assets as security for external debt that results in priority for a third-party creditor equally and ratably secures all amounts payable by the borrowing state. In short, should such a lien be granted, the World Bank shares in the amounts paid out to the third party creditor, thus preventing the creditor from enjoying senior creditor status and undermining the value of any later-granted lien. Including the Negative Pledge Clause in World Bank loan agreements helps mitigate the World Bank’s risk of providing unsecured loans by ensuring that a developing nation will not give a later creditor priority over its assets. In theory, such a pledge protects both the World Bank as a creditor and the sovereign nation as the debtor. However, the barrier that the Negative Pledge Clause constructs around a state’s ability to engage with other creditors is so formidable that the clause may prevent the state from attracting commercial investment for project financings.
As currently drafted, the Negative Pledge Clause dissuades commercial lenders from investing in exactly the kinds of projects that might further development and enrich a nation (thus strengthening the nation’s ability to pay back its debts). This is not only unfortunate for the developing countries involved, but also challenges the raison d’être of the World Bank, a multilateral institution designed to promote development. This article proposes reforming the Negative Pledge Clause by clarifying the language of the text and the consequences of a breach in a way that narrows the breadth of the clause. This article also argues that the World Bank would better achieve its overall purpose of promoting development by including a project finance exception to the Negative Pledge Clause in an effort to attract investors to projects that help expand the debtor nation’s infrastructure.
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By Amitendu Palit
In response to Sumeet Jain’s article, “You Say Nano, We Say No-No:” Getting a “Yes” Instead for Special Economic Zones in India, Amitendu Palit challenges Jain’s position that greater incorporation of public views and procedural reforms will generate more favorable perceptions of India’s Special Economic Zones (SEZs) policy. Though Palit acknowledges that the opposition to SEZs stems from the lack of debate or discussion around the implementation of these development zones, he does not agree that SEZs will gain more support with an increased induction of public opinion and technical improvements in SEZ policy.
At bottom, the underlying conflict between “market-based” and “rights-based” approaches to industrial development in India must be settled. According to Palit, it is unclear whether regulation negotiations, even if fixed specifically on the issue of acquiring land for industry and SEZs, can yield the right solutions unless proponents of both approaches are primed to better appreciate each other’s positions.
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By Anne Sweigart
Across Europe, quotas for female membership on corporate boards have been generating interest, and in a few countries, these quotas have been passed and are awaiting implementation. The quotas are designed to rectify the extreme gender imbalance on corporate boards, which persists despite female advancements in education and workforce participation. In the European Union, women represented just 9.7% of the board members at the top 300 companies in 2008. The lack of progress in women’s corporate leadership is not a European problem alone: in the United States, women make up fewer than 15% of all Fortune 1000 directors.
Since January 1, 2008, Norway has enforced a gender quota requirement for corporate board membership at all public limited liability companies. For most of these companies, the quota requires 40% female board membership. While it is too early to tell exactly how this quota has impacted Norway, the positive effects associated with women on corporate boards indicate the value of increased gender diversity. Quotas like the ones passed in Norway are the most viable means for increasing board diversity and, ultimately, adding value to firms in other countries as well.
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By Daniel Gandert
This year, London is preparing to be the first city to host the Olympic Games three times. While there has been news about the various preparations taking place for the games, one story that has made the British headlines is the question of whether Dwain Chambers and other British athletes with past doping offenses will be eligible to participate. A British Olympic Association (BOA) bylaw prohibits any athlete with a past doping offense from representing Britain in the Olympics for life.
Dwain Chambers, a sprinter, established himself as the fastest European at the 2000 Olympics in Sydney. He became involved with the Bay Area Laboratory Cooperative (BALCO) scandal, which is perhaps the biggest doping scandal in the history of sports. In this scandal, the BALCO laboratory provided prohibited substances to many elite athletes in both track and field and U.S. professional baseball. As part of the scandal, Chambers consumed the steroid Tetrahydrogestrinone (THG) and upon getting caught, was suspended from competing in athletics for two years. This triggered the BOA’s Bylaw 25, which prohibits athletes with doping offenses from competing for Britain in the Olympics for life. Chambers admitted to using prohibited substances, came back to the track world, and ended up running faster than he did while he was doping. Nonetheless, because of the Bylaw, Chambers is prohibited from representing Britain at the Olympics again even though athletes from other countries who have completed their doping suspension will have no legal obstacle preventing them from competing in this summer’s games. The Court of Arbitration for Sport held a hearing regarding the validity of this rule on March 12th, with a decision to be released in early April.
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By Matthew H. Adler
A recent decision by the United States Court of Appeals for the Second Circuit represents a dramatic step backward for the enforcement in the United States of international arbitration awards. In Figueiredo Ferraz e Engenharia de Projeto Ltda. v. Republic of Peru, the Second Circuit held that enforcement of international arbitration awards pursuant to a multilateral treaty is subject to the U.S. common law doctrine of forum non conveniens (FNC). Given that FNC relates to the convenience of holding a trial on the underlying merits, rather than the “convenience” of locating and executing upon assets post-judgment, FNC should have little if any relevance to enforcement actions. The Second Circuit’s reasoning is particularly weak because it did not proceed on commonly understood convenience factors at all. Instead, the Second Circuit expressed concern that enforcement in the United States would demonstrate improper respect for a Peruvian statute that would restrict payment of the arbitration award. Therefore, the court deemed it inconvenient for any Peruvian entity that would be entitled to the protective armor of this statute in Peru to be subject to enforcement proceedings in the United States.
The Second Circuit managed to mangle several doctrines at once, creating a number of problems. First, FNC should be a narrowly restricted doctrine that relates to the trial of underlying facts and not to the enforcement of a resulting award or judgment. Once an award is rendered, assets should be deemed convenient to attach wherever they are located, a point that is the essence of enforcement. Second, public policy concerns have nothing to do with FNC; rather, the public policy exception of the New York Convention is a wholly separate section of that treaty. Third, it is not the blanket “public policy” of the United States to defer automatically to the laws of other countries, especially where those laws interfere directly with the multilateral commitment made by both the United States and Peru to enforce international arbitration awards. By cloaking its public policy holding in FNC garb, the Second Circuit misapplied one doctrine, misstated another, and left enforcement of future international arbitration awards—at least in the critical commercial center that is New York—potentially in considerable disarray.
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By James Larry
The purpose of this Comment is to discuss the participation of National Hockey League players in the 2014 Olympic Winter Games in Sochi, Russia, and the legal issues that may arise from player participation in the Games. Currently, NHL players are allowed to participate in the Winter Olympics under the terms of the Collective Bargaining Agreement between the League and the National Hockey League Players’ Association. However, the current CBA expires in 2012 and does not govern the 2014 Olympics. The fact that at least one NHL superstar has threatened to play in the Olympics regardless of the League’s official position on the issue, while the League has indicated that it does not intend to allow player participation, shows the potential for a dispute between the League and the Players’ Association. This Comment discusses the legal considerations and issues that would govern NHL participation in the 2014 Olympics, and the details of the possible legal disputes arising out of participation in the games.
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By Stephen F. Reed
From its founding in 1979, the Northwestern Journal of International Law and Business (JILB) has brought a particular perspective to the broad discipline known as “international law.” While other journals might address topics such as treaties, the international criminal court, and human rights through a variety of lenses and with varying amounts of theoretical discussion, JILB has sought to bring a focus to private international law. By exploring questions of how businesses are impacted by international law—and how international law is in turn impacted by business—JILB has illuminated practical issues confronted by multinational businesses. The real-world focus of the journal has by no means lessened its scholarly flavor or integrity; rather, JILB has given the academy a place to engage in scholarship that both acknowledges and studies the economic and business impact of its complex doctrinal area.
Although JILB has stayed the course of being relevant to practice while exploring issues in an in-depth and research-intensive manner, the world is markedly different than it was in 1979. In the late 1970s, Westlaw and Lexis were in their infancy, fax machines were rare, and personal computers were just beginning to enter homes. The world communicated primarily by telephone and paper correspondence, and JILB was distributed to subscribers solely by mail. JILB continues to be mailed to subscribers in 2011, but it is also available online, as is its archive. Practitioners and scholars now interact through blawgs and other online publications, which can vary in reliability, but share an immediacy that is difficult to achieve in a traditional print journal. Practitioners and their business clients alike have begun to demand fast and up-to-date information in a digestible format, particularly when they do not have the time to review large quantities of scholarship. The academy, meanwhile, has taken advantage of the ability to publish time-sensitive and often shorter pieces online, which can lead to immediate feedback and impact.
The Ambassador is launching into these exciting and fast-moving waters. It is the hope of JILB’s editors, including its new dedicated Ambassador Editor, that the Ambassador will be especially relevant to practitioners, and particularly of-the-moment. To that end, the Ambassador will consider pieces that are time-sensitive and shorter than JILB’s typical print articles, and will endeavor to bring an enhanced practical focus to all of its offerings. It will also, of course, adhere to the same high standards of selection and editorial quality as the print journal—it will just offer something different: more timely, more practical. As the new faculty advisor to JILB and a practitioner-academic myself, I believe there has been no more exciting moment in JILB’s history since its founding.