Oregon Review of International Law

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Featuring the following topics:

The New Governance of Global Capital Markets: Towards Convergence or Symbolic Posturing
Justin O'Brien
Professor of Law, University of New South Wales, Sydney

At a rhetorical level significant progress has been made towards establishing a coordinated global framework for the governance of capital markets, most notably proposals for a banking levy and a re-negotiation of a social and economic contract between investment banking and wider society, initiatives championed by the British Prime Minister, Gordon Brown, and his French counterpart, President Nicholas Sarkozy. Implementation remains some way off, however, but least because of a failure to address pivotal structural issues, including an agreed definition of what constitutes systemic risk, the specific responsibilities of epistemic communities, including the legal and auditing profession and investment banking, in identifying and ameliorating those undefined risks and the impact of any recalibration on the conceptual underpinnings of corporate and securities law in either a rules or enabling operating environment. Even more problematically, the failure to engage in substantive discussions of the causes and consequences of an erosion of social norms within the professions means that regulatory and policy authorities risk privileging symbolic over substantive change. Moreover, they risk a broader danger of declining legitimacy and authority at a time when government capacity across the globe is stretched to and beyond ability, a perilous state already reached by Greece. This paper examines the trajectory of reform since the onset of the Global Financial Crisis and argues that a failure to address ethical dimension of the identified problems preordains failure.

The Financial Action Task Force and Global Administrative Law
James Thuo Gathii
Professor of Law, Albany Law School

My paper will focus on the law making power of the Financial Accounting Task Force, (FATF) as an international organization and how its work is now being consolidated by being incorporated within the G20's framework for global financial reform. FATF reform therefore constitutes an end run around governments and professional societies. Such an end run around States to implement legal reforms to combat money laundering and terrorism raises several issues addressed in this paper.

While FATF reforms to combat money laundering and terrorism has raised high level discussions within leading law societies like the American Bar Association in the US that is providing a push back to the FATF 40+9 as well as the October 2008 Lawyer Guidance. By contrast, such discussions around FATF money laundering and terrorism financing laws are conspicuously absent in developing countries where FATF reforms are being promoted through well funded aid programs and training of government officials almost to the total exclusion of the private sector including those in the real estate industry, the legal profession and accountants. The paper will contrast recent legislation in Kenya implementing the FATF's antimoney laundering standards with the continuing discussion within the American Bar Association and the fact that no State in the Union is yet commenced even considering similar obligations on lawyers, the real estate industry or other gatekeepers subject to the FATF's antimony laundering and antiterrorism financing standards.

PIGS & iTraxx SovX: All Greek or deja vu all over again?- Global Finance and Accumulation by Dispossession
Tayyab Mahmud
Professor of Law, Seattle University School of Law

Today's debt crisis of Greece brings into contention, among other things, the state of global financial markets. This paper takes issue with ubiquitous mythologies of neoliberal globalization to show how the increasingly deregulated finance capital with a global reach is another iteration of accumulation by dispossession, aka primitive accumulation, a foundational and enduring feature of capitalism. The first part of the paper will explain the concept of accumulation by dispossession - my position departs from the canonical positions on the question of both classical economics and orthodox Marxists. The second part will examine the post "Volcker-Shock" deregulation of global financial markets and its career in light of Latin American debt crisis of the 1980s, the "Asian Flu" of 1997, and current sovereign debt meltdown. The third part will focus on the disjunction between deregulation of global finance capital and controls over currency transfers as an "anti-terror" measure. Finally, the paper will draw conclusions about winners and losers in the battle between global finance capital and the wretched of the earth.

Featured Panelists:

Justin O'Brien

Professor of Law, The University of New South Wales School of Law, Sydney, Australia

PhD (Queen's University, Belfast), MPhil (Queen's University, Belfast), MA (Queen's University, Belfast), BA (Hons) (University of Newcastle, UK)

Professor O'Brien's work centres on the governance of capital markets, with particular reference to US financial regulation. As Principal Investigator he led a Queen's research team that secured a major grant from the Economic and Social Research Council to examine the global impact of Sarbanes-Oxley, sentinel legislation introduced in the aftermath of the collapse of Enron. He is curerently working on a number of research projects linked to the dynamics of regulatory enforcement. He is the author of a trilogy of books on regulatory politics: Wall Street on Trial (2003); Redesigning Financial Regulation (2007); and Engineering a Financial Bloodbath (2009). In addition he has edited a series of collections on corporate governance, including Governing the Corporation (2005); Private Equity, Corporate Governance and the Dynamics of Capital Market Governance and Corporate Business Responsibilities (2009). He is co-editor (along with Iain MacNeil of the University of Glasgow) of a major volume on the legal, policy and regulatory implications of the Global Financial Crisis, The Future of Financial Regulation (2010).

Joel Ngugi

Associate Professor of Law, University of Washington School of Law

LL.B. 1996, University of Nairobi
Diploma, 1997, Kenya School of Law
LL.M. 1999, S.J.D., 2002, Harvard University

Professor Ngugi joined the faculty in 2004. His research interests include the role of law in economic development, the role of governments in market regulation and wealth allocation, and legal reforms in transition and developing economies. He teaches Contracts Law and Contracts Theory, Public and Private International Law (including courses in Law and Development, International Business Transactions, Human Rights and Indigenous Peoples Rights, International Economic Law), and Business Organizations. Professor Ngugi was selected by the students as a Philip A. Trautman Professor of the Year for 2004-05.

Prior to joining the faculty, Professor Ngugi practiced law with the Boston law firm of Foley Hoag, LLP, as a corporate and international litigation associate. He also practiced law with the Kenyan firm Kariuki Muigua & Company Advocates. Professor Ngugi has worked with the United Nations Mission in Kosovo (UNMIK) and conducted research work for the Global Coalition for Africa/World Bank, Program on Humanitarian Policy and Conflict Research (HPCR) at Harvard University and at the Global Trade Watch Division of the Public Citizens, Inc. in Washington, DC.

Professor James Thuo Gathii

Professor of Law, Albany School of Law

LL.B., University of Nairobi
LL.M., S.J.D., Harvard Law School

James Thuo Gathii is the Associate Dean for Research and Scholarship and the Governor George E. Pataki Chair of International Commercial Law at Albany Law School, where he has been on the faculty since 2001. His research and expertise are in the areas of public international law, international economic, international intellectual property and trade law as well as on issues of good governance and legal reform as they relate to the third world and sub-Saharan Africa in particular. Before joining Albany Law School, Professor Gathii taught at the Rutgers Business School. He was also a Crowe and Dunlevy Visiting International Law Professor at the University of Oklahoma's College of Law.

Professor Gathii has published over 40 articles and book chapters, including the Michigan Law Review. Prof. Gathii's two forthcoming books are: War, Commerce and International Law (Oxford University Press, January 2010) and African Regional Trade Agreements as Legal Regimes (Cambridge University Press, 2011)

Enrique Carrasco

Professor of Law, the University of Iowa College of Law
BA, Indiana University, 1980
JD, Georgetown University Law Center, 1986

Professor Carrasco is the Director of The University of Iowa Center for International Finance and Development. Professor Carrasco has published numerous articles on international law and development, and international finance. In 1999, he became the first academic globally to produce an interactive web site (www.uiowa.edu/ifdebook) on international finance and development designed for use by the layperson. The University of Iowa Center for International Finance and Development, maintains the web site featuring an e-book of over 300 pages. Written by Professor Carrasco and a group of his students, the e-book explains the complex world of international finance and development in plain language.

An honors graduate of the Georgetown University Law Center, Professor Carrasco joined the faculty of the University of Iowa College of Law in 1990. Before joining the University of Iowa, Professor Carrasco practiced in the Washington, DC law firm of Arnold & Porter, specializing in international debt restructuring negotiations and related litigation, primarily on behalf of the governments of Brazil and Venezuela. He also represented the US-recognized Government of Panama in matters relating to the activities of General Manuel Noriega.

Tayyab Mahmud

Professor of Law, Seattle University School of Law
BA, University of the Punjab
M.Sc. (International Relations), University of Islamabad
M.A. and Ph.D. (Polictical Science), University of Hawai'i
JD, University of California, Hastings College of the Law

Professor Tayyab Mahmud joined Seattle University School of Law in 2006, and is Director of the Center for Global Justice. Before going to law school Prof. Mahmud taught International Relations and Political Science at various universities in Pakistan and the United States. His legal experience includes working with the California Attorney General's Office, the Los Angeles District Attorney's Office, the San Francisco-based firm Pettit & Martin, and the Pakistan-based firm Walker Martineau Saleem. Between 2004-2006, he was Professor of Law and Chair, Global Perspectives Group, at the John Marshall Law School in Chicago.

Colonialism and imperialism are his primary areas of specialization. He has published extensively in the areas of comparative constitutional law and international law. His primary research areas are critical legal theory, colonial legal regimes, international law, and post-colonial legal systems. His current research is focused on extra-constitutional usurpation and exercise of power in post-colonial states. His current research is focused on extra-constitutional usurpation and exercise of power in post-colonial states.

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