A Critical Analysis of the SEC’s Reaction to Crypto Lending 

For the past several years, investors around the world who are interested in owning and holding certain cryptoassets for the long term have had the opportunity to deposit their assets with various companies and protocols and earn interest. One such company is CoinLoan, based in Europe and regulated under applicable EU financial law. It offers […]

The End of the War or the Commencement of Battle?  

Cryptocurrency Regulation in China  In September 2021, China’s central bank, its highest court and procuracy, as well as seven other national government departments and agencies jointly enacted a legally binding Notice on Further Preventing and Disposing of the Risks of Speculative Trading in Virtual Currencies (“Notice”), marking the culmination of China’s yearslong war against cryptocurrencies. […]

Capital Markets and Corporate Governance Standards

Corporate governance has over time moved from being a peripheral to a central issue for capital markets regulation. Our recent research focuses on how that transformation has occurred in the UK and how it has adjusted the default provisions of UK corporate law.   We begin with the observation that corporate governance was not a significant […]

“Clickbait” Compliance and ISO Standard-Setting 

A curious development has emerged in the world of corporate compliance. In recent years, the International Organization for Standardization (ISO), the world’s leading private standard-setter, has been developing a flurry of new compliance-related international standards. These standards range from specific risk areas, such as anti-bribery (ISO 37001) and whistleblowing (ISO 37002), to broader concerns, such […]

Non-Intermediate Clearing of Crypto Derivatives on Margin is a Bad Idea

The following is an edited comment letter that was submitted to the Commodity Futures Trading Commission (CFTC, or Commission) on May 11th in regards to the Commission’s request for comment on FTX’s request to amend their derivatives clearing organization order to permit it to clear non-intermediated, margined products. All submitted comments can be viewed here. We are law professors […]

ERISA Regulations Should Address Evolving Nature of Prudence and Duty of Impartiality

The use of financially material environmental, social, and governance (“ESG”) information by pension fiduciaries in investment analysis continues to be a hot topic. On October 14, 2021, the US Department of Labor (“DOL”) issued a proposed rule entitled “Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights.” As the title suggests, the proposal addresses the fiduciary […]

Does Industry Employment of Active Regulators Weaken Oversight?

Industry employment of active regulators has long raised the concern that it weakens oversight, as regulators might receive financial compensation from firms in exchange for reduced oversight. In response, most public regulators have implemented policies that require regulators to resign from industry employment upon taking office, effectively prohibiting industry employment for active regulators. In contrast, […]

The Impact of Credit Market Development on Auditor Choice: Evidence from Banking Deregulation

Understanding the forces that govern firms’ auditor choice decisions has long attracted attention from regulators, academics, and practitioners. High-quality auditors can provide greater assurance of the credibility of financial reporting. This improved assurance mitigates agency costs arising from adverse selection and moral hazard between firms and their capital providers, and in turn improves resource allocation and contracting […]

Creditor protection and divisions under EU Company Law: A critical assessment of CJEU’s decision in I.G.I.

In its “I.G.I.” decision of 30.1.2020 (C-394/18), the Court of Justice of the European Union (CJEU) held that the European creditor protection rules for divisions do not prevent creditors of the company being divided from filing an actio pauliana[1] in accordance with national law. We think this decision is not correct. The I.G.I. decision involved the partial […]

It’s Time to Regulate Stablecoins as Deposits and Require Their Issuers to Be FDIC-Insured Banks

 In November 2021, the President’s Working Group on Financial Markets (PWG) issued a report analyzing the rapid expansion and growing risks of the stablecoin market.[1]  Stablecoins are digital assets that claim to maintain a “stable” value with reference to a designated currency (typically the U.S. dollar) or some other asset, index, or formula.  PWG’s report concluded that […]