Issues

Abstract

This note examines the current state of private equity and venture capital activity and investment in Germany, and specifically in Berlin, in relation to the state of such activity and investment that existed in the San Francisco Bay Area prior to and following its tech explosion in the late twentieth century. Numerous factors such as political and ethnic diversity, a comparatively lower cost of living, and proximity to higher education institutes are propelling Berlin’s startup and tech scenes, and are eerily reminiscent of similar factors that fueled the Bay Area’s growth and attracted private equity and venture capital activity to that region.

With a tumultuous history stretching back at least a century to the early 1900s involving numerous wars and political, physical, and national divisions, Berlin has lacked resources and lagged behind in terms of investment and activity compared to its European neighbors. However, almost thirty years after the fall of the Berlin Wall and the end of the Cold War, the startup and tech scenes in the Hauptstadt are finding their footing and thriving, and seed funding and other forms of investment are beginning to flow in as a result. Factors that significantly contributed to the Bay Area’s tech blow-up and reputation as a tech Mecca, are now similarly positioning Berlin to become the next capital of venture capital and private equity in Europe.

Abstract

This note explores the development of courts’ refusal to extend comity to foreign representatives who have filed a proceeding under chapter 15 of the U.S. Bankruptcy Code. Congress adopted chapter 15 as part of a comprehensive 2005 bankruptcy reform. It allows foreign entities to receive protection under the U.S. Bankruptcy Code. In most cases, foreign representatives who file a chapter 15 proceeding are involved with ancillary insolvency proceedings outside the United States. There is often a question of how or if a U.S. court overseeing the chapter 15 proceeding will defer to a judgment or process within the foreign ancillary proceeding. In most cases, the court extends comity to respect international cooperation and grants the foreign representative their preferred relief.

However, as chapter 15 proceedings have exploded, courts have encountered compelling reasons to refuse comity to foreign representatives. As the number of chapter 15 proceedings increases, diligent chapter 15 litigants must improve their strategy by understanding when and why a court may refuse to grant comity. This note discusses the issue in two parts. First, it covers the development of transnational insolvency law within the United States, arguing that clarity has remained a central theme throughout. Second, it examines all cases from January 1, 2016-November 30, 2021, in which courts have refused to grant comity to foreign representatives who have filed chapter 15 proceedings. Ultimately, this analysis of recent cases will show that by articulating guiding principles for why and when a court will refuse to extend comity, courts have utilized the comity consideration as an opportunity to provide clarity within this evolving area of law.

Abstract The Alien Tort Statute (ATS), which provides U.S. courts with jurisdiction over violations of the law of nations, has been a crucial mechanism for obtaining redress for international human rights abuses. However, over the past four decades, the Supreme Court has continually chipped away at the jurisdictional reach of the statute. Most recently, in June 2021, the Supreme Court addressed the scope of the ATS in two consolidated cases: Nestlé USA, Inc. v. Doe and Cargill, Inc. v. Doe. Plaintiffs were former trafficked and enslaved children forced to work on cocoa farms in Ivory Coast under grueling conditions. Plaintiffs alleged that Defendants Nestlé and Cargill aided and abetted the plantations through the provision of financial and technical resources in violation of the ATS. However, the Court dismissed the complaint as an impermissible extraterritorial application of the statute, failing to resolve the issue of whether aiding and abetting an international law violation is a valid cause of action under the ATS. Several other questions regarding the defendants subject to suit and the viable causes of action under the statute also remain unanswered. It is therefore worth taking the time to reassess the scope of the ATS and determine which avenues are still available to plaintiffs seeking accountability for international injuries. This Note explores the contours of the current ATS framework and aims to evaluate which claims may plausibly still survive the full set of ATS precedent.