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A Critical Appraisal of Initial Coin Offerings

Lifting the “Digital Token’s Veil”

Dominika Nestarcova

In A Critical Appraisal of Initial Coin Offerings: Lifting the “Digital Token’s Veil”, Dominika Nestarcova examines the regulatory treatment of initial coin offerings (‘ICOs’), a novel form of raising capital, where start-up companies issue blockchain-based assets (‘digital tokens’) to the public in return for a payment.
The ICO model promises to utilize blockchain technology to enforce financial contracting via the underlying code, thereby substituting the traditional securities regulation. Dominika Nestarcova provides an in-depth analysis of this promise by examining the nature of digital tokens, the process, underlying benefits and risks to the model and the current state of the ICO regulation with an aim to uncover how the self-regulatory promise offered by ICOs lives up the expectations.

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C. King Chanetsa

An effective capital markets industry has existed in South Africa for over 120 years. As recently as 2015, South Africa was considered the best regulator of securities in the world. The fall out from the GFC contained lessons for all markets, but not to the same extent. In the pursuit of G20 inspired conformity, aspects of the South African reform agenda may therefore appear replicative of initiatives in other jurisdictions and, consequently, uncritical in parts. In light of the fall to forty sixth place in the world in securities regulation ranking and some uncertainty in respect of the extent and shape of the reform process, C. King Chanetsa reviews activities in South Africa along the busy securities and capital markets value chain, and considers the continuing and emerging regulatory and supervisory framework.

The Corporation, Law and Capitalism

A Radical Perspective on the Role of Law in the Global Political Economy

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Grietje Baars

In The Corporation, Law and Capitalism, Grietje Baars offers a radical Marxist perspective on the role of law in the global political economy. Closing a major gap in historical-materialist scholarship, they demonstrate how the corporation, capitalism’s main engine from city-state and colonial times to the present multinational, is a masterpiece of legal technology. The symbiosis between law and capital becomes acutely apparent in the question of ‘corporate accountability’. Baars provides a detailed analysis of corporate human rights and war crimes trials, from the Nuremberg industrialists’ trials to current efforts. The book shows that precisely because of law’s relationship to capital, law cannot prevent or remedy the ‘externalities’ produced by corporate capitalism. This realisation will generate the space required to formulate a different answer to ‘the question of the corporation’, and to global corporate capitalism more broadly, outside of the law.

Ukrainian Banking Regulation

Its Challenges and Transition towards European Standards

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Olga Afanasyeva and Armin Kammel

For the last few years, Ukraine and its financial sector have gradually sought to apply and comply with EU standards. Most recently, the signing of the EU-Ukraine Association Agreement has given Ukraine’s transition towards EU standards a formal basis. Ukraine, with EU support, is in the process of implementing EU regulations according to this Agreement. Against this background, the publication Ukrainian Banking Regulation: Its Challenges and Transition towards European Standards elaborates on this process by providing an in-depth background of the current Ukrainian banking regulation, its economics and the challenges of complying with the new EU standards.

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Kabir Duggal and Wendy W. Cai

In Principles of Evidence in Public International Law as Applied by Investor-State Tribunals, Kabir Duggal and Wendy Cai explore the fundamental principles of evidence and how these principles relate to burden of proof and standard of proof. By tracing the applications of major principles recognized by the International Court of Justice and applied by investor-state tribunal jurisprudence, the authors offer valuable insight into the interpretation, understanding, and nuances of indispensable principles of evidence, an area that has been ignored in both investor-state arbitration and public international law more generally.

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Christopher Chen

In this work, Christopher Chen examines and compares the regulation of over-the-counter derivatives in Hong Kong and Singapore, the two largest international financial centres in Asia Pacific. Chen analyses current or proposed regulations on trade reporting, centralised clearing and mandatory exchange trading mandates regarding OTC derivatives against the backdrop of reforms of international financial regulatory structure after the global financial crisis. The article also relates the reforms in Asia to development in major Western markets such as the US, the UK or the European Union. Apart from technical comparison and dissecting of content of rules from different angles, his work also examines the rationale behind those reforms and policy concerns behind Asian adoption of the regulatory mandates prescribed by G20 as well as potential policy concerns (such as competition and extraterritoriality) in a market that is dominated by Western banks.

Basel Committee on Banking Supervision

An Assessment of Governance and Legitimacy- Part II

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Maziar Peihani

Part I of this project overviewed the literature on the Basel Committee of Banking Supervision (BCBS) and provided a primer on the Committee’s governance and functions. It also engaged with the current theories on legitimacy and discussed what legitimacy meant for the global governance of banking and how it could be assessed. This part investigates the BCBS’s governance, operation, and policy outcomes to determine the extent to which it is and has been legitimate. The assessment is conducted based on three principles of reasoned decision making, transparency, and accountability. Maziar Peihani argues that the BCBS has gradually become a more legitimate institution but there still exists significant room for improvement. He highlights a number of areas for reform and sets out policy prescriptions to enhance the BCBS’s legitimacy.

Basel Committee on Banking Supervision

A Primer on Governance, History, and Legitimacy -- Part I

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Maziar Peihani

The Basel Committee on Banking Supervision (BCBS) was established in 1974 as an informal group of central bankers and bank supervisors with the mandate to formulate supervisory standards and guidelines. Although the Committee does not have any formal supranational authority, it is the de facto global banking regulator and its recommendations have been widely implemented by member and non-member states. Maziar Peihani investigates the BCBS’s governance, operation, and policy outcomes to determine the extent to which it is and has been legitimate. The project is comprised of two parts. This part overviews the literature on the BCBS, outlines its contribution, and provides a primer on the Committee’s governance and functions. In addition, it engages with the current theories on legitimacy and discusses what legitimacy means for the global governance of banking and how it can be assessed.

Edited by Armin Kammel, Sandra Annette Booysen and Christian A. Johnson

Brill Research Perspectives in International Banking and Securities Law addresses legal and regulatory developments in the area of banking and securities law from both international and interdisciplinary perspectives. It reviews and advances scholarship in this complex area of law and is of interest to academics, practitioners, and policy makers.

Each issue in the journal comprises a single article. The articles published may focus not only on regional developments relating to banking and finance but also on multilateral and international arrangements. Recurrent themes include (but are not limited to) studies and analysis of the international financial architecture as well as aspects of market infrastructure, the protection of consumers in the financial sector, and specifics of banking, securities markets, and mutual fund regulation.

Edited by Ian A. Laird and Borzu Sabahi

Brill Research Perspectives in International Investment Law and Arbitration provides a systematic review of key topics in this increasingly important area of international law and practice. Foreign investment (particularly FDI) continues to be a catalyst for development. To promote and protect the flow of such investments, countries worldwide have entered into thousands of investment treaties and domestic investment laws, which requires them to protect foreign investment in their territories. These treaties also allow foreign investors to directly sue governments before international arbitration tribunals for treaty violations ranging from old-fashioned “expropriation without compensation” to violations of more modern protections such as the so-called “fair and equitable” standard of treatment. The claims raise a mix of public international law, private and public law, and public policy issues requiring an examination of the legitimacy of a government’s exercise of its core functions including regulatory (involving taxation, health, and environment), administrative, and police powers and the balance of those against foreign investors’ rights under the treaties. This journal addresses these issues and aims to provide an authoritative reference guide for scholars and practitioners.

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