Article Responses

Responding to Lea Brilmayer & Geoffrey Chepiga, Ownership or Use? Civilian Property Interests in International Humanitarian Law, 49 Harv. Int’l L.J. 413 (2008)*

Civilians have historically found it difficult to recover damages for property destroyed during armed conflict, but new legal bodies are now making compensation for such loss more feasible. In their article Ownership or Use? Civilian Property Interests in International Humanitarian Law, Lea Brilmayer and Geoffrey Chepiga argue that the international community must “plan for a future” that allows for monetary awards to civilian victims of property destruction. They contend that international humanitarian law (IHL) should determine the worth of property differently during times of war than during times of peace, and they propose that civilians should receive compensation for destroyed property based on its civilian use rather than its market value. The authors do not fully address, however, the realities of war’s destruction and the suffering it causes. Their model should be expanded to encompass individual as well as communal civilian property and to apply the compensation formula to all unlawful damage, not just deliberate destruction.

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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

Introduction*

The “forces of change” affecting the U.S. regulatory environment described in Ethiopis Tafara’s and Robert Peterson’s article A Blueprint for Cross-Border Access to US Investors: A New International Framework (“the Blueprint”) are challenging regulators across the world. The Australian Securities and Investments Commission (“ASIC”) has been developing an approach to regulating cross-border trade in financial services, and this has found expression in a number of ASIC policy statements. This commentary, which explores possible approaches to such “forces of change,” is therefore given from the perspective of a regulatory authority that has articulated a position on regulating cross-border trade and is grappling with implementing that policy.

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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

Introduction*

The first car I owned was produced in 1934, as was the Securities Exchange Act. I hasten to add that the car was quite used before it came into my hands, again, like the ‘34 Act. It was a good car for the needs of its day, and so were the Exchange Act and its companion, the Securities Act of 1933. But, while the federal securities laws have been the subject of numerous modernizations over the past seventy-two years, they look and function more like the original model than current automobiles look like my 1934 Ford.

From this perspective, it is a great pleasure to read and have the privilege of commenting on the seminal work that Mr. Tafara’s and Mr. Peterson’s article, A Blueprint for Cross-Border Access to U.S. Investors: A New International Framework (“the Blueprint”), represents. In the gentlest of ways, the authors have suggested that the robes of the Securities and Exchange Commission (“SEC”) are not non-existent, as in the Hans Christian Andersen fable, but less than fully suitable for today’s needs. And with even greater care, they have reminded us that the U.S. capital markets are not alone in the world; the SEC is no longer the emperor of global market activity.

My first and strongest reaction to the Blueprint is a blend of admiration for the authors’ insight and appreciation that individuals of their stature at the SEC have the freedom to speak so clearly of the need for new tailoring of the U.S. regulatory wardrobe. It is also a pleasure to recognize how deftly they suggest that this wardrobe needs only a few nips and tucks to facilitate the healthy global marketplace that will best serve the interests of U.S. investors in the rapidly shifting conditions they describe.

Put in more traditional terms, Mr. Tafara and Mr. Peterson offer suggestions for how the United States can enable the creation of “a new international framework.” They recognize that the United States will be unable to dominate global capital markets activity in the 21st century as it has done in the past, but they posit that it can legitimately aspire to lead one global marketplace. In addition, they make a convincing case that competing through collaboration will further the interests of U.S. investors and commerce.

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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.