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Volume 41 - Issue 2


Forget BIT: The Impact of RTA on FDI and Economic Growth – A Comparison of Brazil and Mexico

Meguerian-Faria, Rosa | March 1, 2021

This article explores the relationship between international trade law, foreign
direct investment (FDI), and economic growth of developing countries. Here, I
argue that a developing state needs to capture the right combination of the
different types of FDI to promote domestic growth. I apply principles of law,
economics, and finance to my analysis of the importance of Bilateral Investment
Treaties (BITs), compared to Regional Trade Agreements (RTAs) to FDI inflow,
and how it can impact economic growth in developing countries. I show that the
RTAs give a signal that the country is open to foreign investment, and therefore
it promotes FDI inflow more efficiently than BITs. Nevertheless, there are
different levels of states’ commitment to free trade, and to the RTA signed, which
does impact the kind of FDI received. I compare Brazil and Mexico’s FDI inflow
and national regulatory governance to illustrate my theory. Finally, I propose
that the goal of developing countries’ international trade policy should go further
than just the promotion of FDI inflow. It should focus on promoting the right
combination of the different types of FDI inflow that will promote long term
investment and stable economic growth.

Self-Regulation in the Derivatives Markets: Stability Through Collaboration

Tarbert, Heath P. | March 1, 2021

Sound financial regulation does not require choosing between governmental
and private action. Instead, optimal regulatory solutions often blend the
expertise and adaptability of private-sector influence with the stabilizing effects
of federal oversight. This collaborative framework has a rich history in U.S.
derivatives regulation, which has long relied on self-regulatory organizations
(“SROs”) like exchanges, clearinghouses, and the National Futures Association
to help promote market stability and customer protection. SROs remain subject
to oversight by the Commodity Futures Trading Commission (“CFTC”), which
guards against the proverbial fox-in-the-henhouse scenario while advancing
quintessential government functions like mitigating systemic risk.

The advantages of this self-regulatory framework were underscored in 2020,
when the coronavirus (COVID-19) pandemic spurred unprecedented volatility
across U.S. derivatives markets. Effectively navigating the market effects of the
pandemic required a calibrated approach that drew from the advantages of
SROs and the CFTC. The integrated response that emerged is a model for how
SROs and the CFTC can together promote stability through collaboration.


Outsourcing the Police: How Reliance on the Private Sector for Law Enforcement Threatens Privacy Legislation Around the World

Colbary, Karl | March 1, 2021

Data privacy is an increasingly important issue in the world today. People are
increasingly aware of, and concerned about, their digital footprint. As a result,
many jurisdictions around the world—the United States excluded—have enacted
legislation with an eye towards giving their citizens greater control over their
data. However, the movement to give individuals greater control over how their
data is used by tech providers often overlooks the fact that the government is
one of the biggest consumers of the data that tech providers collect. Therefore,
data privacy regimes that allow the flow of personal information to the
government do not meaningfully protect individual privacy. As the people of the
United States continue to debate how to best safeguard their personal
information, they should be mindful of how law enforcement demand for their
information can undermine those efforts.

This note begins by observing how the current legal framework in the United
States is ill equipped to deal with the privacy issues of an increasingly digital
world. Then, it examines the impact that data privacy legislation in China and
Europe has had on the relationship between tech companies and law
enforcement. Finally, by applying the lessons learned in China and Europe, this
note attempts to predict how efforts to protect consumers’ data privacy may
work in the United States. Ultimately, this note argues that, because law
enforcement in the United States is reliant on the data collected by the private
sector, meaningful data privacy reform is likely impossible unless it applies to
both the private sector and government equally.

Send the Word Over There: An Offshore Solution to the Right to Be Forgotten

Kaganoff, Jay | March 1, 2021

The right to be forgotten is a subject of contention in both the United States and
the European Union. In the E.U., the right to be forgotten gives one the right to
demand that information—even if published legitimately—be taken down or
removed from search engine results. While well-intentioned, this has led to
concerns of free press restrictions. In contrast, the right to be forgotten is not
recognized in the U.S., although there are scholars who would like to see such a
right here. This Note takes the view that introducing a right to be forgotten
would be contrary to the first amendment and privacy law frameworks in the
U.S., and further is not desirable based on the European experiment.

In 2019 the European Court of Justice held in Google v. CNIL that a
multinational platform does not have to comply with E.U. regulations on the
right to be forgotten on its non-European platforms. Building on this distinction,
this Note suggests an “offshore solution” to host articles and search engines
outside the reach of European jurisdictions.

This Note is of interest to scholars and practitioners curious about the right to
be forgotten debates, as well as the general differences in jurisprudence
between the U.S. and the E.U. in balancing privacy rights against freedom of
speech and the press.