Professors Vinayagamoorthy and Shannon Presented at ASIL’s International Economic Law Interest Group Junior Scholars Research Forum
On Friday, November 22, Professors Kish Vinayagamoorthy and Victoria Shannon presented their scholarship at the American Society of International Law (ASIL) International Economic Law Interest Group Junior Scholars Research Forum hosted by the University of Pennsylvania School of Law and the Wharton School. Their proposals were selected through a competitive process by members of the ASIL International Economic Law Interest Group, and senior scholars in the field commented on their work.
Professor Vinayagamoorthy presented on improving corporate social responsibility in global supply chains. Professor Shannon presented on optimal dispute systems for third-party funding.
Washington and Lee law professor Jim Moliterno was one of a small number of panelists invited to present earlier this month at an Aspen Institute Law & Justice Symposium on mass atrocities. The event was titled “Trying Atrocity Crimes: The Khmer Rouge Trials, Transitional Justice, and the Rule of Law; An Aspen Institute Symposium for Judges and Scholars.” Prof. Moliterno presented during a session titled “Recent Experiences from the Field.” His role was to situate his work on legal institution building within the context of prevention and remedy for atrocities.
Prof. Moliterno is an acknowledged international expert in legal ethics and professionalism and has traveled throughout the world to help countries develop ethics policies and training programs. He has engaged in substantial international legal ethics and legal education reform work, designing new lawyer and judge ethics courses in Serbia, Armenia, Georgia, Czech Republic, Japan, Indonesia and Thailand. He has trained law professors in China, Thailand, Georgia, Armenia and Serbia. He has trained judges in Kosovo and both judges and prosecutors in Indonesia. He has worked to revise the lawyer ethics code in Thailand and Georgia and lectured extensively on international lawyer ethics topics in Spain, Czech Republic, and Slovakia.
Washington and Lee law professor Mark Drumbl presented during this year’s Washington and Lee University Nobel Prize Symposium, in which W&L faculty members present on the year’s Nobel Prizes, giving background on the winners and the work that earned those honors.
Prof. Drumbl spoke on this year’s Peace Prize, which was awarded to the Organization for the Prohibition of Chemical weapons, an intergovernmental organization that implements the Chemical Weapons Convention. Prof. Drumbl’s subjects included the law of war, the Organization and its work, the effects of chemical weapons, and the Syrian situation.
Earlier this month, Washington and Lee law professor Susan Franck went straight from teaching her International Commercial Arbitration course to fly to South Korea. But this time her students were government officials and other representatives from members of APEC–the Asia-Pacific Economic Cooperation.
In connection with the Free Trade Agreement Asia Pacific (FTAAP), APEC countries came together in Seoul to participate in a workshop designed to build capacity and foster policy debates related to dispute resolution under international trade and investment treaties. Professor Franck presented her research to representatives from Brunei Darussalam, Chile, China, Hong Kong, Indonesia, Japan, Korea, Malaysia, The Philippines, Singapore, Chinese Taipei, and Viet Nam who were in Seoul to learn more about how to prevent, manage and resolve international economic disputes. She primarily focused upon the empirical analysis of investment treaty arbitration and paid particular attention to reality-testing conventional wisdom on investment treaty arbitration with a unique focus on the experience of APEC to help government officials consider how best to manage their disputes and negotiate their treaties.
Highlights of the presentation related to a detailed assessment of the identity of foreign investors making claims and whether and how those investors were reliably linked to outcomes. The presentation also provided specific assessment of APEC-related risk for investment treaty arbitration. While the data demonstrated that APEC states are relatively standard respondent states — particularly in terms of types of investors bringing claims and the ultimate outcomes — there were a few variations related to industrial sectors involved and the location of claims that suggested that APEC states should take a careful and strategic approach to treaty negotiations.
Her designated commentators were Professor Joung-Wook Hwang of the Hankuk University of Foreign Studies in Korea and Mr. Jaywang Huang, from the office of Trade Negotiations for the Ministry of Economic Affairs in Chinese Taipei.
Prof. Lyman Johnson Presents at First Annual Workshop for Corporate & Securities Litigation at Illinois College of Law
On Friday, November 8, W&L Law Professor Lyman Johnson presented his paper The Dwindling of Revlon at the First Annual Workshop for Corporate & Securities Litigation at the University of Illinois College of Law. Here is an excerpt from the Introduction:
In 2012, stockholders challenged a remarkable 96% of M&A transactions with a value greater than $500 million and 93% of deals with a value greater than $100 million, a stunning upsurge since 2005. The vast majority of these lawsuits settle, largely with disclosure-only accords, but where monetary benefits are involved, the average payment has increased in the last few years. A mainstay argument by plaintiffs is that the selling company’s board of directors failed to maximize the sale price − i.e., the board breached its so-called Revlon duty. The “Revlon” in Revlon duty, of course, refers to Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., a landmark 1986 ruling by the Delaware Supreme Court. Revlon was one of a handful of takeover-fueled decisions during the 1980s that fundamentally redrew the map governing director duties in the M&A setting. Given the high volume of M&A activity in the U.S., and the frequency of court challenges to that activity, Revlon has become an assumed and accepted part of the legal landscape for both the practicing M&A bar and the judiciary.
Yet, in 2013, Delaware’s contemporary Revlon jurisprudence has come under fierce scholarly attack. Professor Stephen Bainbridge has severely criticized several Chancery Court decisions for misapplying the Supreme Court’s core teachings on Revlon, a critique Professor Mohsen Manesh counters is itself misconceived. Professor Frank Gevurtz has leveled a more fundamental broadside against Revlon, contending it lacks any defensible policy rationale, and advocating its outright abandonment.
We have an altogether different perspective than the bar, the judiciary, and other scholars. We argue that, given its intersection with another important arc of recent Delaware decisional law, Revlon today is, ex post, essentially a constrained remedies doctrine, applicable only pre-closing for possibly granting non-monetary sanctions. We arrive at our novel thesis concerning Revlon as the natural conclusion of examining the following question: Does Revlon apply only if a sales transaction is entered, or does it also govern sales efforts by boards that utterly fail even to produce a transaction? If an attempted sale failed due to a flawed process, might the directors nonetheless have breached their Revlon duty because of how poorly they conducted the selling effort? Maybe, in other words, the reach of Revlon is actually far broader than many appreciate. Probing these neglected issues through a remedies perspective offers a useful, if ironic, lens on where exactly, as it turns out, the overblown Revlon doctrine stands today.
On November 12, Washington and Lee law professor David Bruck will speak in Atlanta at the National Symposium on the Modern Death Penalty in America. Former President Jimmy Carter will open the American Bar Association-sponsored event, which will feature many special issue panels.
Prof. Bruck’s panel is titled “Professionalism: The Role of the Courts, Prosecutors, and Defenders in the Death Penalty System,” and will also include recently retired Sixth Circuit Judge Boyce Martin, former Texas Governor Mark White, and exonerated Texas death row inmate Anthony Graves.
Last month, Washington and Lee law professor Susan Franck presented her research on treaty-based investment arbitration at the Fifth International Conference on Law and Economics of International Arbitration at St. Gallen, Switzerland.
Professor Franck’s presentation was focused specifically on the law and economics of investment treaty arbitration, with a focus upon systematically considering the risks and costs of dispute resolution. The conference involved a series of other presentations related to arbitration in emerging markets, competition law, financial services arbitration, and sports by international arbitration scholars and practitioners. The conference also involved a special address by Richard A. Posner on the topic of “What do Arbitrators Maximize?” During that presentation, Professor Franck had an opportunity to discuss her research with Judge Posner and explore the perennial question about whether arbitrators’ award are a proverbial “splitting of the baby”.