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The Financial Meltdown and Its International Implications

Published online by Cambridge University Press:  27 February 2017

Detlev F. Vagts
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Type
Editorial Comment
Information
American Journal of International Law , Volume 103 , Issue 4 , October 2009 , pp. 684 - 690
Copyright
Copyright © 2009 by The American Society of International Law

References

1 Group of 20, Declaration of the Summit on Financial Markets and the World Economy (Nov. 15,2008), available at http://www.un.org/ga/president/63/commission/declarationG20.pdf, excerpted in John, R. Crook, Contemporary Practice of the United States, 103 AJIL 149 (2009)Google Scholar. The Group of 20 consists of the nineteen major national economies and the European Union. The G–20 has established a Financial Stability Board.

2 U.S. emergency action in 1933 to go off the gold standard and abrogate contractual gold clauses was upheld by a divided Supreme Court in the “Gold Clause Cases” Perry v. United States, 294 U.S. 330 (1935). The dissenters warned that “[l]oss of reputation for honorable dealing will bring us unending humiliation; the impending legal and moral chaos is appalling.” Id. at 381 (McReynolds, van Devanter, Sutherland, & Butler, JJ., dissenting). Later there was a futile monetary and trade conference in London. Detlev, F. Vagts, International Economic Law and the American Journal of International Law, 100 AJIL 769, 775 (2006)Google Scholar.

3 The original IMF Agreement committed the United States to maintain the dollar at a fixed rate in relation to gold; after the United States abandoned this commitment, see Vagts, supra note 2, at 779 – 80, the Agreement was amended in 1978. Compare Articles of Agreement of the International Monetary Fund, opened for signature Dec. 27, 1945, 60 Stat. 1401, 2 UNTS 39 (entered into force Dec. 27,1945), with Amendment of Apr. 30, 1976, 29 UST2203 (entered into force Apr. 1, 1978). It is questionable whether the accompanying tariff surcharge was compatible with the GATT provisions authorizing action in case of balance–of–payment problems. See Report of Working Party, GATT B.I.S.D. (18th Supp.) at 212–23 (1971)Google Scholar. For one thing, the emergency balance–ofpayments action authorized by GATT is a quota rather than a tariff surcharge. See John, H. Jackson, William, J. Davey, & Alan, O. Sykes Jr., Legal Problems of International Economic Relations 1100–03 (5th ed. 2008)Google Scholar.

4 Anne–Marie, Slaughter, A New World Order 172–77 (2004)Google Scholar.

5 Id. at 172 (quoting Bevis, Longstreth, The SEC After Fifty Years: An Assessment of Its Past and Future, 83 Colum. L. Rev. 1593, 1610 (1983))Google Scholar.

6 Sarbanes–Oxley Act of 2002, Pub. L. No. 107–204, 116 Stat. 745 (2002) (principally codified in 15 & 18 U.S.C.). For the Act’s international implications, see Detlev, F. Vagts, Extraterritoriality and the Corporate Governance Law, 97 AJIL 289 (2003)Google Scholar. On the extent to which the relative decline of U.S. securities markets is due to the Act or to other factors such as the increasing efficiency of foreign markets, see Howell, E. Jackson & Eric, J. Pan, Regulatory Competition in International Securities Markets: Evidence from Europe—Part II, 3 Va. L. & Bus. Rev. 207 (2008)Google Scholar.

7 Their efforts resulted in the promulgation in 2007 of Securities Exchange Act Rule 12h–6, 17 C.F.R. §240.12h–6 (2009).

8 Eric, Pfanner, Germans Receive Bush Speech Coldly, N.Y. Times on the Web, Sept. 26, 2008 Google Scholar, available in LEXIS, News Library, Individual Publications File.

9 For background, see David, R. Herwitz & Matthew, J. Barrett, Materials on Accounting for Lawyers 174 (4th ed. 2006)Google Scholar. For a comparative overview of accounting practices, see Detlev, F. Vagts, Law and Accounting in Business Associations , in 13 International Encyclopedia of Comparative Law, Business and Private Organizations, ch. 12A (Alfred, Conard & Detlev, Vagts eds., 1998)Google Scholar.

10 Work is also being done to increase international uniformity in auditing practice. See Herwitz & Barrett, supra note 9, at 239.

11 Id. at 8 (Supp. 2008).

12 Allowing U.S. Issuers to Prepare Financial Statements in Accordance with International Financial Reporting Standards, Concept Release, 72 Fed. Reg. 45,600 (Aug. 14, 2007). The SEC has recently indicated that it may require use of IFRS by 2014. Roadmap for the Potential Use of Financial Statements Prepared in Accordance with International Financial Reporting Standards by U.S. Issuers; Proposed Rule, 73 Fed. Reg. 70,816 (Nov. 21, 2008).

13 Lawrence, A. Cunningham, The SEC’s Global Accounting Vision: A Realistic Appraisal of a Quixotic Quest, 87 N.C. L. Rev. 1, 3(2008)Google Scholar.

14 For a brief description of IMF conditionality, see Frederic, L. Kirgis Jr., International Organizations In Their Legal Setting 565–69 (2d ed. 1993)Google Scholar.

15 The general impact on U.S. foreign policy of the nation’s now being a “debtor empire” is explored in Niall, Ferguson, Colossus: The Price of American Empire 279 (2004)Google Scholar.

16 James, Fallows, Be Nice to the Countries That Lend You Money, Atlantic, Jan. 2009, at 62, 65 Google Scholar.

17 50 U.S.C. app. §2170 (2006).

18 Detlev, F. Vagts, William, S. Dodge, & Koh, Harold Hongju, Transnational Business Problems 489–93 (4th ed. 2008)Google Scholar.

19 Paul, Rose, Sovereigns as Shareholders, 87 N.C. L. Rev. 83 (2008)Google Scholar.

20 International Working Group of Sovereign Wealth Funds, Sovereign Wealth Funds: Generally Accepted Principles and Practices (“Santiago Principles”) (Oct. 2008), available at http://www.iwg–swf.org/pubs/eng/santiagoprinciples.pdf.

21 Methanex Corp. v. United States, Final Award on Jurisdiction and Merits (NAFTA Ch. 11 Arb. Trib. Aug. 3, 2005), discussed in Sanford, E. Gaines, Case Report: Methanex Corp. v. United States, in 100 AJIL 683 (2006)Google Scholar.

22 For a current listing of BITs, see the Department of State Web site at http://www.state.gov/e/eeb/ifd/bit/index.htm.

23 On the 2004 revised model bilateral investment treaty, see Sean, D. Murphy, Contemporary Practice of the United States, 98 AJIL 836 (2004)Google Scholar, and John, R. Crook, Contemporary Practice of the United States, 99 AJIL 259 (2005)Google Scholar. On the ending of the negotiations for a multilateral treaty on investment, see Lori, F. Damrosch Et Al., International Law: Cases and Materials 1626–27 (4th ed. 2001)Google Scholar. For an overall survey of the expropriation issue, see Steven, R. Ratner, Regulatory Takings in Institutional Context: Beyond the Fear of Fragmented International Law, 102 AJIL 475 (2008)Google Scholar.

24 The label originated in Peter, J. Spiro, The New Sovereigntists: American Exceptionalism and Its False Prophets, Foreign Aff., Nov.–Dec. 2000, at 9 Google Scholar; see also Peter, J. Spiro, Globalization and the (Foreign Affairs) Constitution, 63 Ohio State L.J. 649 (2002)Google Scholar.

25 Kenneth, Anderson, Squaring the Circle? Reconciling Sovereignty and Global Governance Through Global Government Networks, 118 Harv. L. Rev. 1266, 1286–87 &n.52 (2005)Google Scholar (reviewing Anne–Marie, Slaughter, A New World Order (2004))Google Scholar.

26 For an exception, see Jeremy, A. Rabkin, The Case For Sovereignty: Why The World Should Welcome American Independence, ch. 5 (2004)Google Scholar.

27 Some U.S. stimulus actions might be thought to violate commitments under the GATT, specifically those concerning government procurement. Investment treaties may keep the United States from regulating foreign investments in this country the way the government might otherwise wish. In the future the United States may be drawn into treaty–based solutions for some aspects of the economic crisis such as an intergovernmental financial regulatory organization. To some extent, restraints are brought to bear through the medium of international networks or regimes. IOSCO, having once been a forum in which U.S. positions received widespread acknowledgment by other countries, has become a source of pressure on the United States to adapt its positions to international norms.