Confidentiality and NAFTA Chapter 11 Arbitrations

It is often said that confidentiality is one of the benefits of international commercial arbitration and one of the principal reasons why business people have made arbitration the forum of choice for the resolution of international commercial disputes. Others have gone further and suggested that parties place the highest value upon confidentiality as a fundamental characteristic of international commercial arbitration. No authority is generally cited for such a proposition but it is seen as implicit or a corollary to an agreement to resolve a dispute by way of arbitration. Claimants in the North American Free Trade Agreement ( NAFTA ) Chapter 11 arbitrations have generally relied on this notion that the private nature of arbitrations gives rise to a duty of confidentiality, with some success, to support their contention that materials generated and produced in Chapter 11 proceedings cannot be made publicly available. This has led to criticisms from nongovernmental organizations ( NGOs ) and others that the NAFTA Chapter 11 dispute settlement mechanism is secretive and not open to public scrutiny. This paper argues that the existence of a general principle of confidentiality applicable to commercial arbitrations is far from a settled issue, and more importantly, if it does exist, it should have no application in the context of NAFTA Chapter 11 arbitral proceedings

Essays in corporate finance

This dissertation bundles three essays in the area of corporate finance. It deals with two main issues: capital structure decisions in financially distressed firms and the role of the investor identity on the acquisition performance. The first essay is a literature review about equity issues as a means to recover from financial distress. The study provides, firstly, an overview of the extant literature on capital structure theory and financial distress in order to deepen the understanding of how a firm can resolve its financial constraints. On the one hand, some of the most important contributions in capital structure theory are reviewed with a specific focus on equity issues. On the other hand, financial distress is discussed examining the main solutions adopted by distressed firms in order to reorganize (i.e. formal in court proceedings and private reorganizations). Finally, it is discussed a possible gap in capital structure theory and financial distress literature arguing that most of previous research, in the attempt to explain the occurrence of equity issues, just focused on firm specific determinants. With the aim to provide a further perspective for future research, the study examines a series of contributions that consider how capital structure decisions can be affected by external determinants related to the legal system in which the firm operates. These works are aggregated to the discussion in order to suggests a conceptual framework suitable to explain equity issues in financial distress through the integrations of capital structure theory with Law literature. The second essay is a theoretical and empirical investigation on equity issues in distressed firms. Specifically, I explore the effectiveness of equity issue as a means to recover from distress. I argue the relationship between equity issues and recovery controlling for the legal system in which the firm operates. Central to the thesis is the role of the Bankruptcy Law on the firm’s propensity to issue equity which varies according to the legal protection of the creditors. Controlling for this exogenous factor allows me to explain how recovery is affected by the issuance of equity. This study contributes to both capital structure theory and financial distress literature providing evidence on how the capital structure decision to issue equity can drive the process of firm’s recovery from distress. Then, it suggests an alternative explanation of the decision to issue equity in distress arguing the relevance of the legal system as a determinant of this choice. The hypotheses are tested on a sample of 70 firms that recovered from financial distress in 49 countries. The sample is divided in to 34 distressed firms who recovered issuing equity and 36 firms who recovered without an equity issue. Results show that the legal system matters for understanding the occurrence of equity issues in distress; they are more likely to occur in countries with a debtor friendly legal system. Conditionally to the incidence of the law on the firm’s choice to issue equity, equity issues positively affect the firm’s recovery from distress. The third study is a theoretical and empirical examination about the relationship between the buyer identity and the acquisition performance. This relationship is argued advancing and testing the idea that different identities of the buyer, specifically strategic or financial investors, have different effects on the performance of the target firm after an acquisition. We suggest that the different resource and knowledge base of the buyer, i.e. its identity, drives the target performance: on the one hand it affects the innovative output and so the patenting activity of the target, on the other hand it has an impact on the economic results of the acquired firm. This study contributes to literature on M&A by providing a complementary explanation of M&A performance, unraveling how the identity of the buyer can play a significant role in driving post-acquisition performance. Moreover, it suggests a more complete analysis of the deal’s output considering both the innovative and the economic output. The study relies on a sample of 234 acquisitions in any industry completed between 2006 and 2011. Results show that the identity of the buyer has a direct effect on the performance of the target firm after the acquisition. The results also highlight how identity has a different impact regarding to the different measures of performance: whilst the strategic buyers, moved by the interest for additional knowledge and technology, tend to integrate their capabilities with target fostering innovative processes and improving the innovative performance, the financial buyers use to undertake deals in order to maximize their profits at the expense of the innovative performance. Different evidences emerge for the economic performance of the involved firm which is positively affected by financial buyers respect to strategic ones since they induce the target firm to undertake highly risky and long term investments in R&D. The two papers of this dissertation have been presented at international Conferences on management such as EURAM 2014 (European Academy of Management) and BAM 2015 (British Academy of Management). The papers will be submitted to journals soon

Data Autonomy

In recent years, “data privacy” has vaulted to the forefront of public attention. Scholars, policymakers, and the media have, nearly in unison, decried the lack of data privacy in the modern world. In response, they have put forth various proposals to remedy the situation, from the imposition of fiduciary obligations on technology platforms to the creation of rights to be forgotten for individuals. All these proposals, however, share one essential assumption: we must raise greater protective barriers around data. As a scholar of corporate finance and a scholar of corporate law, respectively, we find this assumption problematic. Data, after all, is simply information, and information can be used for beneficial purposes as well as harmful ones. Just as it can be used to discriminate and to embarrass, information can be used to empower and to improve. And while data privacy is often pitched at ending unauthorized data sharing, it all too often leads simply to the end of data sharing, period. This comes at a cost. Data silos can inhibit consumer choice, protect the positions of powerful incumbents, and reduce the efficiency of markets. The best example of these costs comes from the financial industry. For more than a century, banks and other financial institutions have built their information technology systems to keep financial records as private and nonshareable as possible. While security concerns can be a primary reason for such closed systems, banks also understand that financial data is an advantage that can protect them from market entry and competition. Banks can hold up consumers with unfavorable rates and inferior products as a result, and a set of market failures make it difficult for consumers to opt out. First, information asymmetries between consumers and financial institutions are large and difficult to resolve. Second, search and switch costs—the difficulty of finding out more information about the risks and benefits of financial products and of switching to a better financial service—are high in the financial industry. Finally, individuals struggle to take advantage of even simple financial strategies to save, borrow, and invest. Data sharing can help resolve these problems. The emergence of a new regulatory and technological framework called “open banking” raises the possibility of consumers being able to task trusted intermediaries with automatically analyzing their financial data, nudging them to achieve their goals, and switching them to better products, all in order to reduce the substantial inefficiencies in their financial lives. There is one problem, however. A combination of market failure and regulatory ambiguity has led to a situation in which data is limited, siloed, and inaccessible, thereby preventing individuals from using their data in efficient ways. Ultimately, this Article contends, resolving these problems will require us to replace the clarion call of “data privacy” with a new, more comprehensive concept, that of “data autonomy”—the ability of individuals to have control over their data. Data autonomy balances the need for data to be protected and secure with the need for it to be accessible and shareable. In this Article, we lay out a set of key principles that grant individuals a legal right to data autonomy, including a right of ownership over data, as well as obligations on institutions to safely share standardized and interoperable data with third parties that consumers so choose. Perhaps counterintuitively, the only way of expanding consumer welfare and protection today is by breaking down the barriers of data privacy

Unveiling the Sources of the Catastrophic 1456 Multiple Earthquake: Hints to an Unexplored Tectonic Mechanism in Southern Italy

We revisited data related to the 1456 seismic crisis, the largest earthquake to have ever occurred in peninsular Italy, in search of its causative source(s). Data about this earthquake consist solely of historical reports and their intensity assessment. Because of the age of this multiple earthquake, the scarcity and sparseness of the data, and the unusually large damage area, no previous studies have attempted to attribute the 1456 events to specific faults. Existing analytical methods to identify a likely source from intensity data also proved inappropriate for such a sparse dataset, since historical evidence suggests that the cumulative damage pattern contains at least three widely separated events. We subdivided the 1456 damage pattern into three independent mesoseismal areas; each of these areas falls onto east–west tectonic trends previously identified and marked by deep (>10 km) right-lateral slip earthquakes. Based on this evidence we propose (1) that the 1456 events were generated by individual segments of regional east–west structures and are evidence of a seismogenic style that involves oblique dextral reactivation of east–west lower crustal faults; (2) that each event may have triggered subsequent but relatively distant events in a cascade fashion, as suggested by historical accounts; hence (3) that the 1456 sequence reveals a fundamental but unexplored mechanism of tectonic deformation and seismic release in southern Italy. This style dominates the region that lies between the northwest–southeast system of large extensional faults straddling the crest of the southern Apennines and the buried outer front of the chain. Although the quality of the available information concerning the 1456 earthquake is naturally limited, we show that the overlap of the damage distribution, the orientation and characteristics of regional tectonic structures, the seismicity patterns, and the focal mechanisms all concur with our interpretations and would be difficult to justify otherwise

AMPK in the central nervous system: physiological roles and pathological implications

5′ AMP-activated protein kinase (AMPK) is considered the master metabolic regulator in all eukaryotes, as it maintains cellular energy homeostasis in a variety of tissues, including the brain. In humans, alterations in AMPK activity can lead to a wide spectrum of metabolic disorders. The relevance of this protein kinase in the pathogenesis of diabetes and metabolic syndrome is now well established. On the contrary, correlations between AMPK and brain physiopathology are still poorly characterized. The aim of this review is to summarize and discuss the current knowledge about the prospective involvement of AMPK in the onset and the progression of different neurological diseases

Technological specialization and the decline of diversified firms

We document a strong decline in corporate-diversification activity since the late 1970s, and we develop a dynamic model that explains this pattern, both qualitatively and quantitatively. The key feature of the model is that synergies endogenously decline with technological specialization, leading to fewer diversified firms in equilibrium. The model further predicts that segments inside a conglomerate should become more related over time, which is consistent with the data. Finally, the calibrated model also matches other empirical magnitudes well: output growth rate, market-to-book ratios, diversification discount, frequency and returns of diversifying mergers, and frequency of refocusing activity.otherpublishe

Data Autonomy

In recent years, “data privacy” has vaulted to the forefront of public attention. Scholars, policymakers, and the media have, nearly in unison, decried the lack of data privacy in the modern world. In response, they have put forth various proposals to remedy the situation, from the imposition of fiduciary obligations on technology platforms to the creation of rights to be forgotten for individuals. All these proposals, however, share one essential assumption: we must raise greater protective barriers around data. As a scholar of corporate finance and a scholar of corporate law, respectively, we find this assumption problematic. Data, after all, is simply information, and information can be used for beneficial purposes as well as harmful ones. Just as it can be used to discriminate and to embarrass, information can be used to empower and to improve. And while data privacy is often pitched at ending unauthorized data sharing, it all too often leads simply to the end of data sharing, period. This comes at a cost. Data silos can inhibit consumer choice, protect the positions of powerful incumbents, and reduce the efficiency of markets. The best example of these costs comes from the financial industry. For more than a century, banks and other financial institutions have built their information technology systems to keep financial records as private and nonshareable as possible. While security concerns can be a primary reason for such closed systems, banks also understand that financial data is an advantage that can protect them from market entry and competition. Banks can hold up consumers with unfavorable rates and inferior products as a result, and a set of market failures make it difficult for consumers to opt out. First, information asymmetries between consumers and financial institutions are large and difficult to resolve. Second, search and switch costs—the difficulty of finding out more information about the risks and benefits of financial products and of switching to a better financial service—are high in the financial industry. Finally, individuals struggle to take advantage of even simple financial strategies to save, borrow, and invest. Data sharing can help resolve these problems. The emergence of a new regulatory and technological framework called “open banking” raises the possibility of consumers being able to task trusted intermediaries with automatically analyzing their financial data, nudging them to achieve their goals, and switching them to better products, all in order to reduce the substantial inefficiencies in their financial lives. There is one problem, however. A combination of market failure and regulatory ambiguity has led to a situation in which data is limited, siloed, and inaccessible, thereby preventing individuals from using their data in efficient ways. Ultimately, this Article contends, resolving these problems will require us to replace the clarion call of “data privacy” with a new, more comprehensive concept, that of “data autonomy”—the ability of individuals to have control over their data. Data autonomy balances the need for data to be protected and secure with the need for it to be accessible and shareable. In this Article, we lay out a set of key principles that grant individuals a legal right to data autonomy, including a right of ownership over data, as well as obligations on institutions to safely share standardized and interoperable data with third parties that consumers so choose. Perhaps counterintuitively, the only way of expanding consumer welfare and protection today is by breaking down the barriers of data privacy

First appraisal to define prospective seismogenic sources from historical earthquake damages in southern Upper Rhine Graben

The southern portion ofthe Upper Rhine Graben, a major oblique rift among France, Germany and Switzerland, shows a weak instrumental seismic record despite its remarkable physiographic imprint within the Northern Alpine foreland. Since traces of active deformation can be found in this region and based on experience in other European areas with high seismic hazard and dense population, we searched for past earthquakes recorded in historical catalogues. Based on the fact that tectonic deformation cumulates through geological time and considering that long-term effects tend to leave characteristic signatures on present-day landscape arrangement, our goal was to identify faults that could have caused the damage of recorded historical events. We isolated five main earthquakes, ofmoderate Richter magnitude, essentially located on the E flank of the graben (as is the case with recent seismic activity). To such events, we were able to associate a specific prospective structure through the use ofa procedure thus far successfully employed in Southern European contexts. We concentrated on three events which showed (a) notable sensitivity to the density of the historical felt reports and (b) accordance with on-going subtle deformation pattern. Another, most relevant earthquake (M 5.5) yielded a promising match with the known deformation network in the region. As a template to better constrain earthquake cycle and damage potential, historical seismicity offers an invaluable tool, since it contains a specific record, although not always unambiguous. Cross-checking such data with pertinent geological information allows to devise a realistic fault geometry capable of being responsible for a specific seismic event