** (see the next post for the new painting done today) **
Breaking News from CNN just now –
Eight Yemeni lawmakers resign; two tell CNN they’re protesting recent violence against anti-government demonstrators.
and the story below which says that Misurata is now taken from the Qaddafi regime by government opposition groups.
France rocked by news of aid to Tunisia and Egypt France trained Egyptian police officers in crowd control and sent tear gas to Tunis. And its foreign minister vacationed in Tunisia after the uprising, using the jet of a man linked to the ousted president.
anti-corruption, anti-torture, cricketdiane, Human Rights, President Bush, Republican Presidential administrations, Switzerland, torture ordered by President Bush and Dick Cheney, UN human rights council, US executive trust
In light of the overwhelming body of available information there can hardly be doubt that there are grounds that were to trigger Switzerland’s obligation to submit cases for investigations into the crime of torture against anybody present on its soil who has authorized, participated or was complicit in the above practices.
This would have to include also former President G Bush who had the overall control as commander in chief and as all information suggests authorized, knew and acquiesced into the practices that constitute the crime of torture. Switzerland would also have to take measures against any offender present on its territory to secure his presence for such criminal investigations and proceedings.
In this regard, the OMCT considers that neither officials nor former Heads of States can enjoy immunity for the crime of torture under the UN Convention Against Torture, nor can superior orders or the memos drafted by government lawyers and that sought to immunize officials from prospective prosecution under US domestic law, shield them from responsibility under international law.
Excerpt from the article / letter on the above linked page about the visit that ex-President George Bush was expecting to make on Feb. 12, 2011.
It is about damn time. He and his Republican conservative cronies had no right to use the United States the way they did and to use the resources put at their command to abuse people, to torture, to kill people during torture, and to do any other of a number of horrible things they did. It is unfortunate that they made those decisions but they were not done in our name as citizens and most of us, including me – do not agree with any of it having been done in America’s name. I’m glad they have taken a stand on it.
Air Quality, Alternative Fuels, alternative transportation choices, alternative vehicles, battery technology, car consumers, cars, clean air, cricketdiane, electric cars, electric vehicles, Extreme Engineering, green technology, Hybrid Vehicles, pollution, production electric vehicles, prototype vehicles, reduced exhaust emissions, save the ocean, trucks, US transportation, vehicles
The $32,780 Leaf and the $41,000 Volt cost far more than a comparably sized car with a gas engine, which typically sells for $20,000.
The federal government is already offering incentives as high as $7,500 for consumers to buy plug-in cars and putting up $2.4 billion for battery and electric-car manufacturing.
“When you start to aggregate the automakers’ announced intentions, it’s difficult to get to 1 million by 2015,” Graham said.
My Note –
Sounds like they don’t want this to work. And, we are subsidizing these vehicles being built, plants being built to build them, factories being tooled to produce them, research to have been done to create them and countless dollars for every single part of the operation – and then, they produce a few thousand cars which doesn’t reap the rewards of mass production to bring down the costs? What kind of jackasses would do that?
Sounds like the car companies simply don’t want electric vehicles to be purchased by mainstream car buyers in America. And, they’ve used our money to do it. Disgusting.
Watching the pictures live on BBC just now looking across the crowd of protesters in Cairo – it seems to me that there is a disconnect between the very rich, isolated member of the Egyptian government sitting in their environments with real gold leaf on the ornate furnishings around them and the reality they have created for everyone else to suffer.
One carpet that is under the feet of these government officials would have provided jobs for thousands of Egyptians, many of whom make no more than $2.00 per day. I don’t think they know that is the extent of what is irrational about the decisions they have made.
I was actually watching this EuroNews clip online when I noticed the furnishings, the carpets, the Louis whatever furnishings with real gold on their ornate features, noted the massive crystal chandelier and thought about Mr. Mubarak having his home in Vienna, Austria.
And, it occurred to me how ridiculous the new vice president’s words were, as he claims to want to speak to the opposition . . .
Can he not walk out into the Tahrir Square in Cairo and find them? Would the new cabinet members, each of whom have a history of oppression and cruelty towards the people of Egypt, as much as Mubarak has as well, – actually walk out into the masses of Egypt’s people and speak with them? And, listen to them? And do anything to fix it?
Are they really looking for solutions in the government or are they doing something else?
Looking at this group of news from the last little bit from google news, by date on this subject – is actually a bit bizarre . . .
This seemed pretty interesting, although I’m not sure of its source ideologies –
CAIRO, Tuesday 1 February 2011 (AFP) – Fifty Egyptian human rights groups on Tuesday called on President Hosni Mubarak to “step down to avoid bloodshed,” on the eighth day of anti-government protests that have left at least 125 people dead.
In a statement, the rights groups call for “parliamentary and presidential elections to be held within six months under the supervision of the judiciary.”
Among the statement’s signatories are Egypt’s main human rights groups, including the Cairo Institute for Human Rights Studies, the Centre for Economic and Social Rights and the Arab Centre for the Independence of the Judiciary.
The groups also called for “a new constitution formulated by a a commission representing all parties and political groups as well as civil society.”
And, I saw something from the IMF too –
CNBC.com – Gail Krishnan – 1 hour ago
Youth unemployment in Egypt and Tunisia was a ticking “time bomb”, IMF chief Dominique Strauss-Kahn told CNBC Tuesday, adding that he had warned of such a …
IMF vows to help Egypt reform Financial Times (blog)
(from google news)
There are pictures on CNN American Morning with Anderson Cooper in Cairo right now – it is more than a million souls in that protest right now and more are coming . . .
Which goes to prove the point, governments exist by consent of the governed – not the other way around, regardless of what rich and powerful leaders in their isolated conclaves believe.
Any society stops without having the consent of the governed, and any government ignoring the needs of their people can be brought to nothing when the consent of the governed is withdrawn.
It doesn’t matter what happened over the last thirty years now. It is the next thirty years and beyond that are being created right now and healing from the previous multitude of harms done to Egypt’s individual citizens can now begin to happen.
The friends of Egypt’s government around the world, may want to take note – even as Davos kept leaders bundled up and bunkered in its plush environs for their discussions – the people they affect by their decisions are never far away and nothing moves, or works well when people are oppressed, insulted in thousands upon thousands of cruelties, excluded from equality and opportunity, left without opportunities to employment, and abused by authorities.
Found over on wikipedia -(entry about Mubarak)
While in office, political corruption in the Mubarak administration’s Ministry of Interior has risen dramatically, due to the increased power over the institutional system that is necessary to secure the prolonged presidency. Such corruption has led to the imprisonment of political figures and young activists without trials, illegal undocumented hidden detention facilities, and rejecting universities, mosques, newspapers staff members based on political inclination. On a personnel level, each individual officer can and will violate citizens’ privacy in his area using unconditioned arrests due to the emergency law.
Transparency International (TI) is an international organisation addressing corruption, including, but not limited to, political corruption. In 2010, TI’s Corruption Perceptions Index report assessed Egypt with a CPI score of 3.1, based on perceptions of the degree of corruption from business people and country analysts, with 10 being very clean and 0 being highly corrupt. Egypt ranked 98th out of the 178 countries included in the report.
Egypt is a semi-presidential republic under Emergency Law (Law No. 162 of 1958) and has been since 1967, except for an 18-month break in 1980s (which ended with the assassination of Sadat). Under the law, police powers are extended, constitutional rights suspended and censorship is legalized. The law sharply circumscribes any non-governmental political activity: street demonstrations, non-approved political organizations, and unregistered financial donations are formally banned. Some 17,000 people are detained under the law, and estimates of political prisoners run as high as 30,000.
Under that “state of emergency”, the government has the right to imprison individuals for any period of time, and for virtually no reason, thus keeping them in prisons without trials for any period. The government continues the claim that opposition groups like the Muslim Brotherhood could come into power in Egypt if the current government did not forgo parliamentary elections, confiscate the group’s main financiers’ possessions, and detain group figureheads, actions which are virtually impossible without emergency law and judicial-system independence prevention.
Pro-democracy advocates in Egypt argue that this goes against the principles of democracy, which include a citizen‘s right to a fair trial and their right to vote for whichever candidate and/or party they deem fit to run their country.
And this article has some interesting information about several different things, including about some traditional horrific customs that continue, and illiteracy, and economics and wheat prices (in Egypt) –
It is interesting and offers a much greater picture of the problems across much of the world, and particularly in Egypt today –
My Note –
We so completely need Egypt and the Egyptian people to join us in the twenty-first century . . .
And, that is the truth.
There must be a way to make a strong democracy there right now and bring them into the new century with us rather than it all going backwards into some continued horrific fourteenth century nightmare. Honestly.
Of all the times, for the world’s nations to come together and support a people – this would be it.
My Note –
It is very annoying to listen to Mr. Spitzer on CNN use this occasion to make his push for gun control and after listening to him, I’ve decided that I agree – he should not be allowed to own a gun given his past tendencies to bad judgment. We all know how he ended up where he is.
And, it is just bizarre to watch him and others weasel around this situation that has happened in Tucson in order to suit their own agendas and push for their own “whatever it is” – from using it for profiteering and fund-raising to pushing for gun control and having any one whose thinking isn’t the same as everyone else put into lockup without rights or recourse.
It is my opinion that Elliot Spitzer never get to own a gun (or bullets for that matter) – I think a lot of us would agree to that. If he stopped using this opportunity to shove his views about gun control down everyone’s throats that would be nice, too.
And after hearing what Ms. Palin had to say –
My opinion is that Sarah Palin should stop reading historical novels as her source of information which seems like the most likely place where the terms she has been using lately would’ve been found. Someone needs to tell her that historical novels fail to offer the full measure and import of the concepts offered there. To use a term like, “blood libel” shows someone who did not understand the measure of those words.
The Republican pundits who have spewed forth venom for months upon months now during the Obama administration, were spewing out the same hateful crap against every homeless person, every immigrant, every illegal immigrant, every liberal, every Democrat, every Union, every trench coat wearing stranger, every vagrant, every out of work family, every poor person and every mentally ill person, every woman with a job outside of the home and just about every worker in America for years upon years before that. They are a real piece of work anyway. It has driven us all nuts.
It is also my educated opinion that when our nation’s leaders decided to sit together irrespective of the “aisle” which has divided them, it was one of the most intelligent things I’ve seen happen in the politics of my adult lifetime. (I heard it on the news a little bit ago that they are going to do that and it is good, even if for only a moment in time.)
And, I want to say that probably none of us care in America whether politicians are calling each other “jackasses” or anything else. That is not the part that has mattered. When our leaders and “political pundits” and talk show radio hosts have sounded like some backwoods, intellectually narrow-minded perversion of reality it has mattered. Calling one another names – who cares.
My Note –
Still working on building the business websites, social networking stuff and fixing the websites for the America The Beautiful Shows today.
Discovered that some of the pages are hidden on the website I published as it is under construction yet – just to get it online and then go from there. And, I found out today that if anybody wants to buy anything on the site or be a sponsor or advertiser with us at our main core site – there is no way to make an online payment with us set up on the pages, even though I have a PayPal account. It isn’t connected for the site to use yet but I had gone ahead and published the website before realizing that. In fact it was today before I even thought about that part. Duh.
And the flash website about the America the Beautiful Shows created by Mander Commander on Wix had a mis-spelling when the domain was input for it, so right now it is still listed as a free site with them even though we paid for their premium unlimited service for it to have the domain name we bought over at GoDaddy. I put the other main core site on Verio with its domain names including (.net) and (.com) – it looks like that will allow others to add their state, city, town or focus to use when they make their own America The Beautiful Shows where they live.
Oh yeah – just to explain right quick –
I decided that it would make a better business model considering my own limitations, to create a core website online and put the tools and business plans public on the site for people to use for building their own events around the country.
The only basic incomes from it for us will be the sponsors, advertising on the site and sales of information that is extra not published on the site. I can send those things on cd or flashdrive in the mail, put on an email attachment or allow them to download them online. But there does have to be a way for people to order them and pay for them through PayPal or by a check in the mail or something. It is possible as quick as I figure out how to put the PayPal button on the html pages over on the server. Looks like I will be reading tutorials again today.
So here is what I wrote that explains the America the Beautiful Show Concept for the business –
America the Beautiful Show
With the tools on this site you will be able to create your own America the Beautiful event for your town or city.
The America the Beautiful Show is a themed event that anyone can create with available local resources for sponsors to be showcased and audiences to enjoy while they discover the possibilities in the community around them for inventing their own solutions to our national economic crisis.
found here –
one of our hidden pages (accidentally) – it takes going through links to find it:
and here is our products page –
this page describes the show from the perspective of the sample press release about it and below that is a “Flow of the Show” script suggested to describe the way shows could be done for two hours with entertaining music and speakers – massive resource rich information would be given to the audience members in the lobby or as gift packages to take home (without charge as part of the show) –
The way the site is written – I’m hoping that anyone would be able to follow the guidelines and information found on the site to build and host their own event for America The Beautiful Show where they live and generate revenues for themselves and their team from it. – (and helping the community at the same time.)
The Wix site that Mander Commander built for it is amazing – right now, it can be found at this address –
And I also made a YouTube site for the business and a twitter account –
at user name –
Now, let me see if I can get this other stuff fixed up with the domains assigned to the Wix site that we’ve bought for them and the PayPal links made on the main site for people to use.
I guess I can do this – I’m trying and it is certainly harder for me than it would have been to simply put on the show in Atlanta myself because I’m having to learn about things that I’m not as comfortable with doing.
Oh well – it’ll work . . .
Inventing solutions for America again – I hope they do some good this time.
(my note -)
There you go.
This is the logo I designed for the main core business and website for this part of the project –
With the tools on our new website site you will be able to create your own America the Beautiful event for your town or city and make your own money from it or be inspired to create some other great business of your own from what you find there.
The About Us page on the America the Beautiful Show website –
(and that’s what y’all get for letting me write it . . . )
And this is an excerpt from our new About Us page on the site –
Better Things To Do –
Two years ago, when I first designed this show (cricketdiane), not many people believed that our economic downturn would last much of any time at all really. And, they would’ve been right if it had been another time in our more recent history – but this time, things were different. And, I think most people may not have been aware of how different the facts are from past modern recessions that post-date the Great Depression of the 1930’s in America and around the World.
Now, most people realize what long-term unemployment can come with an event of this scale and many people know that communities and individuals, families and businesses are all in trouble.
And an excerpt from one of the hidden pages that can only be accessed through the links on the projects page (so far) –
Handy Stuff you might need to know –
Glossary of Terms – (used in America the Beautiful Show business plans and information)
Resourcing – Turning inventiveness into reality by bringing together a multitude of resources available in the surrounding and extended communities (to serve a goal or many goals at once.)
Functionable – Do what actually works. (paraphrased for polite company)
Pile Theory – If you can’t pile it correctly, you may never find it again, (for papers and notes.)
– written by cricketdiane
(down a ways on the same page is a little of the idea we believe about citizenship and then there are sections that are yet to be completed – but I’m working on it.)
Now – I’m wandering over to the PayPal site to figure out how to add that on the site where we are offering products and opportunities for sponsored ads, sponsors and business partners who want to put ads on our site to participate. The other things on the site are available without charge except for things like using our logo to co-brand their event when somebody puts together an America the Beautiful show where they live, and we’re going to charge for more comprehensive marketing and promotion plans than those available on the site publicly accessible without charge. And, we are also going to be charging for comprehensive downloads which involve the entire business plan found on the site although anyone who wants to do it one part at a time can take the things found on the site using copy and paste, if they don’t mind spending the time to do it.
And that is what I want people to do that come to the site – to get the info that is there which they can copy off and paste to a document and use it to make events they put together themselves around the country. Except for the parts where we are charging something to get it – the rest is available for people to use without having to interact with us at all. I am hoping to find some sponsoring businesses that would like to advertise in the margins of the site for the costs of doing it to be covered and maybe enough to pay a little to us for making it available and keeping up with it. I hope it works.
On to other things now – I’ll write some more tomorrow or later tonight.
It’s very exciting . . .
Federal Lanham Act Remedies for False Advertising –
1. Historical Background –
Section 43(a) of the Lanham Act prohibits any false description or representation of goods. Although this section was originally construed narrowly, to reach only “passing off” and other behavior resembling trademark infringement, modern cases regard the statute as providing a federal remedy against false advertising.
2. Standing: Who May Invoke Section 43 –
A plaintiff seeking injunctive relief under § 43(a) must show a likelihood of economic injury due to the defendant’s conduct in order to be entitled to relief. If the plaintiff seeks damages, it must demonstrate an actual loss of sales (and / or loss of revenue, my note – actual money, but can include lost opportunity costs.)
3. What Constitutes a False Description or Representation –
Any falsehood with a tendency to mislead or deceive is actionable under section 43(a), provided it is material. The plaintiff need not prove that the defendant acted intentionally.
(from – “Capsule Summary”)
pp. 20 – 21, also pp. 148 – 150
Unfair Trade Practices & Intellectual Property,
author – Roger E. Schechter,
Black Letter Series, West Publishing Co., St. Paul, Minn.; 1986
Hmmmm . . . . – wonder if those laws still exist? After watching the Goldman Sachs hearings in the Senate committee yesterday, when investors are told that a thing is good investment securities, when they know it is not – isn’t that applied to laws like this? Or rather, aren’t laws like this applied to situations like that?
I found another section of this book which had this sentence – “Nonetheless, some courts will impose a duty to pay if the equities of the situation require it to prevent unjust enrichment.” – What constitutes “unjust enrichment”?
my notes –
English unjust enrichment law is a developing area of law in unjust enrichment. Traditionally, work on unjust enrichment has been dealt with under the title of “restitution“. Restitution is a gain-based remedy, the opposite of compensation, as a loss-based remedy. But the event it responds to is the “unjust enrichment” of one person at the expense of another.
The following eleven categories are examples of “unjust factor” (or what Peter Birks argued could be unified under one principle of a basis of a right being absent) which may ground a claim of restitution for unjust enrichment.
Unjust enrichment is a developed and coherent field in continental civil law systems. Continental lawyers say someone is unjustly enriched when there is no basis for their possession or title to some right or property. A more correct way of saying it is that someone has been “unjustifiedly enriched”. In German, the term is Ungerechtfertigte Bereicherung (§812 BGB) and in France the term is Enrichissement sans cause. English lawyers, however, have been accustomed to identify an “unjust factor”. The difference between “unjust factors” and “absence of basis” as a unifying principle has generated a lot of debate, particularly since Peter Birks changed his mind in his second edition of Unjust Enrichment (2005) in the Clarendon Law Series, and argued that the continentals had got it right.
(from – English Law)
(from – “Appendix A”)
pp. 226 – 227
Unfair Trade Practices & Intellectual Property,
author – Roger E. Schechter,
Black Letter Series, West Publishing Co., St. Paul, Minn.; 1986
(excerpt – )
To constitute “unfair” conduct, an advertisement or commercial practice must pose a risk of substantial, unmitigated, unavoidable consumer injury.
(further – )
These advertisements may be deceptive, however, if analyzed under the historic definition of that term. Under the classic test, an advertising claim is deceptive if it has any tendency to deceive a significant number of consumers.
(also found on pp. 225 – )
2. True. The original version of the statute [VIII. Federal Trade Commission Regulation of Unfair and Deceptive Practices] only dealt with “unfair methods of competittion.” The 1938 Wheeler-La Amendment added the “unfair and deceptive acts and practices” language.
(and on pp. 228)
4. True. Such statutes have been applied against defendants who were making casual sales of used goods.
(and therefore, why shouldn’t it be applied to investment firms, banks, hedge funds and others in the investment community who engaged in deceptive and misleading practices that would’ve been illegal in any other context, including as the laws and statutes are applied to regular Americans being involved in casual sales of goods that were unlikely to have created the huge ramifications that the Wall Street players caused, my note.)
Unjust enrichment is a legal term denoting a particular type of causative event in which one party is unjustly enriched at the expense of another, and an obligation to make restitution arises, regardless of liability for wrongdoing.
Liability under the principle of unjust enrichment is wholly independent of liability for wrongdoing. Claims in unjust enrichment do not depend upon proof of any wrong. However, it is possible that on a single set of facts a claim based on unjust enrichment and a claim based on a wrong may both be available. A claim based on unjust enrichment always results in an obligation to make restitution. A claim based on a wrong always results in an obligation to make compensation, but may additionally result in an obligation to make restitution and on the other hand it will result in an obligation to make reimbursement which will allow the normal citizen to the courts for its wrongdoing which it never intended to do so. For discussion of restitution for wrongs, see the page on restitution.
At common law, a claim based on unjust enrichment can be submitted to five stages of analysis. These can be summarized in the form of the following questions:
There are two established approaches to this issue. Traditionally, common law systems such as those of England and the US have proceeded on the basis of what may be termed the ‘unjust factor’ approach. Traditionally, civil law systems such as those of France and Germany have proceeded on the basis of what may be termed the ‘absence of basis’ approach. More recently, many common law systems have showed signs of a possible move towards the ‘absence of basis’ approach (see for example the law of North Dakota in the section on the United States below). Both approaches will be discussed.
The ‘unjust factors’ approach requires the claimant to point to one of a number of factors recognized by the law as rendering the defendant’s enrichment unjust. English law clearly recognises at least the following unjust factors:
It is at least arguable that English law also recognizes the following unjust factors, but some controversy surrounds each:
‘Absence of consideration’ is particularly controversial because the cases that support its existence as an unjust factor can also be used to support the view that English law has begun to favour the ‘absence of basis’ approach (see next paragraph).
The ‘absence of basis’ approach does not deal in individual unjust factors. Instead it seeks to identify enrichments with no legitimate explanatory basis. Imagine that A contracts with B that A will pay $150 up front for B to clean his house. A pays the money. B’s enrichment has a legitimate explanatory basis – he was paid under a valid contract. However, let us now change the example and assume that the contract was in fact void. This is discovered after A has paid the money but before B cleans the house. B’s enrichment no longer has a legitimate explanatory basis so B must repay the $150 to A.
Notice that in the example just given, exactly the same conclusion would be reached using the ‘unjust factors’ approach. Under that approach, A would not be able to point to an unjust factor provided that the contract was valid, but could point to the unjust factor of total failure of consideration once we assume that it was void. In the vast majority of cases, a properly developed ‘unjust factors’ approach and a properly developed ‘absence of basis’ approach will reach the same result.
It is necessary to distinguish personal remedies from proprietary remedies. A personal remedy asserts that the defendant must pay the claimant a sum of money. By contrast, a proprietary remedy asserts that some property in the defendant’s possession belongs to the claimant, either at common law or in equity. There are several arguable examples in the English case law of the courts giving a proprietary remedy in an unjust enrichment claim. However, some commentators maintain that, in English law, unjust enrichment only ever triggers a personal remedy.
There are several reasons why it may be important for the claimant to seek a proprietary rather than a personal remedy. The most obvious is that showing that one is entitled to a proprietary interest in some property means that one need not compete with the defendant’s unsecured creditors in the event of his insolvency. It is also generally accepted, although with little justification, that a claimant who is entitled to a personal remedy only will be restricted to simple interest, while a claimant who is entitled to a proprietary remedy can get compound interest. The availability or non-availability of a proprietary remedy may also have consequences for limitation periods and for the conflict of laws.
English law gives effect to restitutionary proprietary interests (assuming that it does at all) through a number of devices. One of these devices will be discussed and another two will be mentioned briefly.
My Note –
It doesn’t matter if you are a “market maker” or not, such as Goldman Sachs and about 2000 others are – they still can’t store explosives under their desks because they must abide by the laws which apply to that just as we all do, and they still can’t engage in failing to meet OSHA standards for a work place, nor can they be exempted from the regulations, statutes and laws governing the rest of us and the business laws that generally apply to everything.
I know yesterday during the hearings, the term “market maker” was used as a declaration of why “we get to get away with doing it this way, by law – because we qualify as a market maker.” That doesn’t mean everything else in the law and in international law doesn’t apply to them. It does not exclude their businesses, their business participation, their business practices and decisions, their business processes and their marketing practices from the laws governing everything else.
The 2008–2010 Icelandic financial crisis is a major ongoing economic crisis in Iceland that involves the collapse of all three of the country’s major banks following their difficulties in refinancing their short-term debt and a run on deposits in the United Kingdom. Relative to the size of its economy, Iceland’s banking collapse is the largest suffered by any country in economic history.
In late September 2008, it was announced that the Glitnir bank would be nationalised. The following week, control of Landsbanki and Glitnir was handed over to receivers appointed by the Financial Supervisory Authority (FME). Soon after that, the same organisation placed Iceland’s largest bank, Kaupthing, into receivership as well. Commenting on the need for emergency measures, Prime Minister Geir Haarde said on 6 October, “There [was] a very real danger … that the Icelandic economy, in the worst case, could be sucked with the banks into the whirlpool and the result could have been national bankruptcy.” He also stated that the actions taken by the government had ensured that the Icelandic state would not actually go bankrupt. At the end of the second quarter 2008, Iceland’s external debt was 9.553 trillion Icelandic krónur (€50 billion), more than 80% of which was held by the banking sector. This value compares with Iceland’s 2007 gross domestic product of 1.293 trillion krónur (€8.5 billion). The assets of the three banks taken under the control of the FME totaled 14.437 trillion krónur at the end of the second quarter 2008.
The financial crisis has had serious consequences for the Icelandic economy. The national currency has fallen sharply in value, foreign currency transactions were virtually suspended for weeks, and the market capitalisation of the Icelandic stock exchange has dropped by more than 90%. As a result of the crisis, Iceland is currently undergoing a severe economic recession; the nation’s gross domestic product decreased by 5.5% in real terms in the first six months of 2009. The full cost of the crisis cannot yet be determined, but already it exceeds 75% of the country’s 2007 GDP. Outside Iceland, more than half a million depositors (far more than the entire population of Iceland) found their bank accounts frozen amid a diplomatic argument over deposit insurance. German bank BayernLB faces losses of up to €1.5 billion, and has had to seek help from the German federal government. The government of the Isle of Man will pay out half of its reserves, equivalent to 7.5% of the island’s GDP, in deposit insurance.
( . . . )
On 24 October, it emerged that Norway’s semi-public export credit agency Eksportfinans had made a complaint to Norwegian police concerning the alleged embezzlement of 415 million Norwegian kroner (€47 million) by Glitnir since 2006. The Icelandic bank had acted as an agent for Eksportfinans, administering loans to several companies: however Eksportfinans alleges that, when the loans were paid off early by borrowers, Glitnir kept the cash and merely continued with the regular payments to Eksportfinans, effectively taking an unauthorized loan itself.
Trading in shares of six financial companies on the OMX Nordic Iceland Exchange was suspended on 6 October by order of the FME. On Thursday 9 October, all trading on the exchange was frozen for two days by the government “in an attempt to prevent further panic spreading throughout the country’s financial markets”. The decision was made to do so due to “unusual market conditions”, with share prices having fallen 30% since the start of the month. The closure was extended through Monday 13 October due to continuing “unusual market conditions”.
The market reopened on 14 October with the main index, the OMX Iceland 15, at 678.4, which corresponds to a plunge of about 77% compared with 3,004.6 before the closure. This reflects the fact that the value of the three big banks, which form 73.2% of the value of the OMX Iceland 15, had been set to zero. The values of other equities varied from +8% to –15%. Trading in shares of Exista, SPRON and Straumur-Burðarás (13.66% of the OMX Iceland 15) remains suspended. After a week of very thin trading, the OMX Iceland 15 closed on 17 October at 643.1, down 93% in króna terms and 96% in euro terms from its historic high of 9016 (18 July 2007).
Trading in the shares of two financial services companies, Straumur–Burðarás and Exista, resumed on 9 December: together the companies account for 12.04% of the OMX Iceland 15. The values of the shares in both companies dropped sharply, and the index closed at 394.88, down by 40.17% on the day. Trading in shares in SPRON and Kaupthing remains suspended, at prices of ISK 1.90 and ISK 694.00 respectively.
|Agency||29 Sept.||10 Oct.|
The four credit rating agencies which monitor Iceland’s sovereign debt all lowered their ratings during the crisis, and their outlook for future ratings changes is negative. The Icelandic government had a relatively healthy balance, with sovereign debt of 28.3% of GDP and a budget surplus of 5.5% of GDP (2007). Debt is now 90 percent of GDP with a budget deficit.
In addition, the value of foreign currency bonds which mature in the remainder of 2008 is only $600 million, and foreign currency debt service in 2009 is only $215 million, well within the government’s ability to pay. However the agencies believe that the government will have to issue more foreign currency bonds, both to cover losses as the banks’ overseas operations are liquidated and also to stimulate demand in the domestic economy as Iceland goes into recession.
A team of experts from the International Monetary Fund (IMF) arrived in Iceland at the start of October 2008 for talks with the government. Industry Minister Össur Skarphéðinsson was said to be “favourable” to help from the IMF to stabilise the króna and to allow interest rates to be lowered.
On 24 October, the IMF tentatively agreed to loan €1.58 billion. However the loan had still not been approved by the Executive Board of the IMF on 13 November. Apparently, UK and the Netherlands had halted IMF’s aid to Iceland as the Icesave dispute had not been resolved. Due to the delay Iceland found itself caught in a classic catch-22 situation, loans from other countries could not be formally secured until the IMF program had been approved. The Icelandic government spoke of a $500M (€376M) gap in the funding plans. Dutch finance minister Wouter Bos stated that the Netherlands would oppose the loan unless agreement was reached over deposit insurance for Landsbanki customers in the Netherlands.
The IMF-led package of $4.6bn was finally agreed on 19 November, with the IMF loaning $2.1bn and another $2.5bn of loans and currency swaps from Norway, Sweden, Finland and Denmark. In addition, Poland has offered to lend $200M and the Faroe Islands have offered 300M Danish kroner ($50M, about 3% of Faroese GDP). The Icelandic government also reported that Russia has offered $300M. The next day, Germany, the Netherlands and the United Kingdom announced a joint loan of $6.3bn (€5bn), related to the deposit insurance dispute.
In 2001, banks were deregulated in Iceland. This set the stage for banks to upload debts when foreign companies were accumulated. The crisis unfolded when banks became unable to refinance their debts. It is estimated that the three major banks hold foreign debt in excess of €50 billion, or about €160,000 per Icelandic resident, compared with Iceland’s gross domestic product of €8.5 billion. As early as March 2008, the cost of private deposit insurance for deposits in Landsbanki and Kaupthing was already far higher (6–8½% of the sum deposited) than for other European banks. The króna, which was ranked by The Economist in early 2007 as the most overvalued currency in the world (based on the Big Mac Index), has further suffered from the effects of carry trading.
Coming from a small domestic market, Iceland’s banks have financed their expansion with loans on the interbank lending market and, more recently, by deposits from outside Iceland (which are also a form of external debt). Households also took on a large amount of debt, equivalent to 213% of disposable income, which led to inflation. This inflation was exacerbated by the practice of the Central Bank of Iceland issuing liquidity loans to banks on the basis of newly-issued, uncovered bonds — effectively, printing money on demand.
In response to the rise in prices — 14% in the twelve months to September 2008, compared with a target of 2.5% — the Central Bank of Iceland has held interest rates high (15.5%). Such high interest rates, compared with 5.5% in the United Kingdom or 4% in the eurozone for example, have encouraged overseas investors to hold deposits in Icelandic krónur, leading to monetary inflation: the Icelandic money supply (M3) grew 56.5% in the twelve months to September 2008, compared with 5.0% GDP growth. The situation was effectively an economic bubble, with investors overestimating the true value of the króna.
As with many banks around the world, the Icelandic banks found it increasingly difficult or impossible to roll over their loans in the interbank market, their creditors insisting on repayment while no other banks were willing to make fresh loans. In such a situation, a bank would normally have to ask for a loan from the central bank as the lender of last resort. However, in Iceland the banks were so much larger than the national economy that the Central Bank of Iceland and the Icelandic government could not guarantee the repayment of the banks’ debts, leading to the collapse of the banks. The official reserves of the Central Bank of Iceland stood at 374.8 billion krónur at the end of September 2008, compared with 350.3 billion krónur of short-term international debt in the Icelandic banking sector, and at least £6.5 billion (1,250 billion krónur) of retail deposits in the UK.
The situation was made worse by the fact that Icesave was operating as a branch of Landsbanki, rather than as a legally independent subsidiary. As such, it was completely dependent on the Central Bank of Iceland for emergency loans of liquidity, and could not turn to the Bank of England for help. The UK Financial Services Authority (FSA) was aware of the risk, and was considering imposing special liquidity requirements on Icelandic deposit-taking banks in the weeks before the crisis. However the plan—which was never implemented—would have forced the Icelandic banks to cut interest rates or stop taking new deposits, and might even have sparked the sort of bank run it was designed to prevent. The Guernsey authorities were also planning on bringing in restrictions on foreign banks operating as branches and on transfers of funds between Guernsey subsidiaries and parent banks (“parental upstreaming”). Landsbanki operated in Guernsey through a legally independent subsidiary.
The existence of a bank run on Landsbanki accounts in the UK in the period up to 7 October seems confirmed by a statement from the bank on 10 October, which said “Landsbanki Íslands hf. transferred substantial funds to its UK branch during this time to fulfil its Icesave commitments.” The transfer of funds from Landsbanki Guernsey to Heritable Bank, a Landsbanki subsidiary in the UK, also suggests a bank run in the UK. A transfer of “substantial funds” from Iceland to the UK would have been a significant downward push on the value of the króna, even before the effects of any speculation.
The current economic climate in the country has affected many Icelandic businesses and citizens. With the creation of Nýi Landsbanki, the new organisation which replaces the old Landsbanki, around 300 employees will lose their jobs due to a radical restructuring of the organisation which is intended to minimise the bank’s international operations. Similar job losses are expected at Glitnir and Kaupthing The job losses can be compared with the 2,136 registered unemployed and 495 advertised vacancies in Iceland at the end of August 2008.
Other companies have also been affected. For example, the private Sterling Airlines declared bankruptcy on 29 October 2008. The national airline Icelandair has noticed a significant slump in domestic demand for flights. However, the airline states that year-on-year international demand is up from last year. Guðjón Arngrímsson, a spokesman for the airline, said “we’re getting decent traffic from other markets… we are trying to let the weak [króna] help us.” He has also stated that it is impossible to predict whether the company will be profitable this year. Morgunblaðið, an Icelandic newspaper, is cutting some jobs and merging parts of its operations with the media corporation 365. The newspaper 24 stundir has ceased publication due to the crisis, resulting in the loss of 20 jobs.
Importers are particularly hard hit, with the government restricting foreign currency to essential products such as food, medicines and oil. The €400 million loan from the central banks of Denmark and Norway is sufficient to pay for a month’s imports, although on 15 October there was still a “temporary delay” which affected “all payments to and from the country”.
The assets of Icelandic pension funds are, according to one expert, expected to shrink by 15–25%. The Icelandic Pension Funds Association has announced that benefits will in all likelihood have to be cut in 2009. Iceland’s GDP is expected by economists to shrink by as much as 10% as a result of the crisis, putting Iceland by some measures in an economic depression. Inflation may climb as high as 75% by the end of the year.
Unemployment had more than tripled by late November 2008, with over 7000 registered jobseekers (about 4% of the workforce) compared to just 2136 at the end of August 2008. As 80% of household debt is indexed and another 13% denominated in foreign currencies, debt repayment is going to be more costly. Since October 2008, 14% of the workforce have experienced reductions in pay, and around 7% have had their working hours reduced. According to the president of the Icelandic Federation of Labour (ASÍ), Gylfi Arnbjörnsson, these figures are lower than expected. 85% of those currently registered as unemployed in Iceland stated that they lost their job in October, after the economic collapse.
Over £840 million in cash from more than 100 UK local authorities was invested in Icelandic banks. Representatives from each council are meeting to try to persuade the Treasury to secure the money in the same way that customers’ money in Icesave was fully guaranteed. Of all the local authorities, Kent County Council has the most money invested in Icelandic banks, currently £50 million. Transport for London, the organisation that operates and coordinates transport services within London, also has a large investment at £40 million. Local authorities were working under government advice to invest their money across many national and international banks as a way of spreading risk. Other UK organisations said to have invested heavily include police services and fire authorities, and even the Audit Commission. It is hoped that about one-third of the deposited money will be available fairly rapidly, corresponding to the liquid assets of the UK subsidiaries: liquidation of other assets, such as loans and offices, will take longer.
In an emergency sitting of Tynwald on 9 October, the Isle of Man government raised compensation from 75% of the first £15,000 per depositor to 100% of £50,000 per depositor. The Chief Minister of the Isle of Man, Tony Brown, confirmed that Kaupthing had guaranteed the operations and liabilities of its Manx subsidiary in September 2007, and that the Manx government was pressing Iceland to honour this guarantee. Depositors with Landsbanki on Guernsey found themselves without any depositor protection.
On 11 October, an agreement was reached between the Icelandic and Dutch governments on the savings of about 120,000 Dutch citizens. The Icelandic government will cover the first €20,887 on savings accounts of Dutch citizens held by Landsbanki subsidiary Icesave, using money lent by the Dutch government. The total value of Icesave deposits in the Netherlands is €1.7 billion. At the same time, Iceland and Britain reached an agreement on the general contours of a solution: Icesave deposits in the UK total £4 billion (€5 billion) in 300,000 accounts. The figure of €20,887 is the amount covered by the Icelandic Depositors’ and Investors’ Guarantee Fund (DIGF; Tryggingarsjóður in Icelandic): however, the DIGF had equity of only 8.3 billion krónur at the end of 2007, €90 million at the exchange rates of the time and far from sufficient to cover the Dutch and British claims.
The cost of deposit insurance in the UK is not completely clear as of November 2008. The Financial Services Compensation Scheme (FSCS) paid around £3 billion to transfer deposits from Heritable Bank and Kaupthing Singer & Friedlander to ING Direct, while the UK Treasury paid an additional £600 million to guarantee retail deposits that were higher than the FSCS limit. The Treasury also paid out £800 million to guarantee Icesave deposits that were higher than the limit. A loan of £2.2 billion to the Icelandic government is expected to cover the claims against the Icelandic DIGF relating to Icesave, while the exposure of the UK FSCS is expected to be £1–2 billion.
The crisis also prompted the Ministry of Foreign Affairs to reduce its foreign aid to developing nations, from 0.31% to 0.27% of GNP. The effect of the aid cut was greatly amplified by the falling value of the krona, leading the Icelandic International Development Agency (ICEIDA) to see its budget fall from $22 million to $13 million. Since Iceland’s foreign aid is targeted in sectors for which the country has particular expertise (e.g. fisheries, geothermal power), the cutbacks will have a substantial impact in countries which receive Icelandic aid – most noticeably in Sri Lanka, where ICEIDA is pulling out altogether.
On February 27, 2009, the Wall Street Journal reported that Iceland’s new government is trying to raise $25 million by selling its ambassadorial residences in Washington, New York, London and Oslo.
On August 28, 2009, Iceland’s parliament voted 34-15 (with 14 abstentions) to approve a bill (commonly referred to as the Icesave bill) to repay the United Kingdom and the Netherlands more than $5 billion lost in Icelandic deposit accounts. Initially opposed in June, the bill was passed after amendments were added which set a ceiling on the repayment based on the country’s Gross Domestic Product. Opponents of the bill argued that Icelanders, already reeling from the crisis, should not have to pay for mistakes made by private banks under the watch of other governments. However, the government argued that if the bill failed to pass, the UK and the Netherlands might retaliate by blocking a planned aid package for Iceland from the International Monetary Fund (IMF). Under the deal, up to 4% of Iceland’s Gross Domestic Product (GDP) will be paid to the UK, in sterling terms, from 2017-2023 while the Netherlands will receive up to 2% of Iceland’s GDP, in euro terms, for the same period. Talks between Icelandic, Dutch and UK ministers in January of 2010 dubbed as “Icesave” did not result in any specific actions being agreed upon. 
In April 2009, Iceland’s state prosecutor hired Eva Joly, the Norwegian-French investigator who led Europe’s biggest ever fraud investigations into bribery and corruption at oil group Elf Aquitaine, as special consultant to a 20-member ”economic crime team” to “investigate suspicions of criminal actions in the period preceding the collapse of the Icelandic banks” which may involve several Iceland’s business and banking leaders. Joly stated that the investigation will require a minimum of 2–3 years to build up enough evidence to secure prosecutions.
In an interview Joly stated that:
“Finding proof will start at home in Iceland, but my instinct is that it will spread. If there are things relevant to the UK we will get in touch with the Serious Fraud Office. If there are things relevant to Germany we will get in touch with their authorities. In Iceland, there is more than enough for a starting point for the investigation, given all the talk about market manipulation and unusual loans. If these are proved they are embezzlement and fraud. The priority is tracing any flow of assets from the banks and getting them back.”
The investigation is expected to focus on a number of questionable financial practices engaged in by Icelandic banks:
Since the crisis began, many of Iceland’s business leaders, who had previously been considered financial gurus who greatly developed Iceland’s economy, are now under intense public scrutiny for their roles in causing the financial crisis:
Reportedly, all of those under scrutiny are now rarely seen in public and some have apparently left the country. They are also reportedly the subjects of an ongoing investigation to determine if any of their business practices warrant criminal prosecution.
Björn Bjarnson, the former Minister for Justice and Ecclesiastical Affairs, has started a blog detailing the problems with the business sector and the efforts to cover them up. This was cited as an example of how politicians and businessmen, who traditionally held a tight grip over the Icelandic media, have lost this control and that dozens of similar blogs have been created. Björn stated that:
“I have written a lot about problems in the business sector over the last 14 years, and I can only compare some parts of it to Enron. Here companies have been playing a game, using the media and publishing to make themselves look good. We only hope that the foreign media will soon begin to understand what has been going on.”
Parts of the Icelandic public have arranged protests against the Central Bank, the Parliament and the government’s alleged lack of responsibility before and after the crisis, attracting between 3000 and 6000 people (1–2% of Iceland’s population) on Saturdays.
And a little about the Freedom of Information Act and financial firms –
§ 38:249 (US Code)
K. Eighth Exemption: Reports by Financial Institutions
1. In General
§ 38:249 (US Code) Introduction
5 USCS § 552(b) (8) provides an exemption from FOIA disclosure for matters that are contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.
Accordingly, a number of federal offices and agencies, including the Treasury Department, the Comptroller of the Currency, the Federal Reserve System, and the Pension Benefit Guaranty Corporation have promulgated regulations affirmatively applying Exemption 8 to relevant information in their possession.
Some regulations, however, such as those of the Federal Deposit Insurance Corporation, may contain provisions for the discretionary release of reports that are otherwise exempt.
As stated in the legislative history of the FOIA, Exemption 8 is designed to insure the security and integrity of financial institutions, since the sensitive details collected by government agencies which regulate financial institutions could cause great harm if they were to be indiscriminately disclosed. A major concern is that the disclosure of such reports containing frank evaluations of investigated banks might undermine public confidence in the soundness of such institutions and cause unwarranted runs on banks.
A secondary purpose behind the enactment of Exemption 8 is to safeguard the relationship between the banks and the supervising agencies. There was concern that if bank examinations are freely made available to the public and to the banks’ competitors, the banks will be less likely to give the agencies their full co-operation – (which they don’t do now, my note).
The courts have indicated that Exemption 8, like the other FOIA exemptions, must be narrowly construed, but this does not mean that the plain meaning of the language of the exemption can be overlooked.
Practice pointer: Although reports prepared by bank regulatory bodies are beyond the scope of FOIA disclosure, such reports might nevertheless be subject to discovery in the course of litigation.
Exemption 8 does not create independently any evidentiary privilege, its effect being only to permit the withholding of such information from the public generally.
If, however, the federal banking agency forbids the bank to disclose a report of an examination without agency approval, discovery of examination reports must be sought from the agency and not from the bank as part of pretrial discovery in litigation involving the bank. (or financial investment, financial brokerage, stock market records, or investment “auction” facility, my note).
(from pp. 256 – 257, 15 Fed Proc, L Ed; )
§ 38:250. What “financial institutions” are governed by
The term “financial institution” has been interpreted to include banks and other related institutions.
Thus, two sets of federal regulations, those of the Comptroller of the Currency and the Federal Reserve System, indicate that the exemption is applicable to reports relating to the affairs of any bank or affiliate thereof, bank holding company or subsidiary, broker, finance company, or any person engaged, or proposing to engage, in the business of banking, extending credit, or managing or controlling banks.
It has been held that examination reports of federal savings institutions are also exempt from disclosure. Although some fears have been expressed that if Exemption 8 is construed literally, the records relating to a closed bank will be perpetually sealed, it has been held that such records come within the scope of Exemption 8, at least where the bank has only recently been closed and where the records have not yet been turned over to GSA.
One question is whether national securities exchanges are considered to be “financial institutions” within the meaning of Exemption 8.
In one case, a Securities and Exchange Commission staff study on an off-board trading problem raised by a rule of the New York Stock Exchange, as well as of the transcripts made and documents received by the SEC in the course of its investigation, were held not? to be exempted from FOIA disclosure by reason of Exemption 8.
But it has been held that an SEC report regarding an inspection of one of the lesser stock exchanges is exempt as pertaining to a financial institution.
(and from pp. 259, 15 Fed Proc, L Ed)
§ 38:252 Other exempt information
Other types of information that have been held to be exempted from disclosure under 5 USCS § 38:252 (b) (8) include reports of the Comptroller of the Currency concerning the policies of a national bank, reports of FDIC examiners, and reports of the Federal Home Loan Bank Board concerning the financial conditions of savings associations.
Information concerning disciplinary proceedings involving specific stock exchange members, since it is of value to SEC supervision of the stock exchange, is protected by Exemption 8.
Freedom of Information
Federal Procedure, Lawyers Edition; 1990
§ 38:249 (US Code)
§ 38:250 (US Code)
§ 38:252 (US Code)
Volume 15, § 38:1 – 38:600
So much for the concept of transparency. It seems that is simply a term to be used in public displays of political arena working and not an application used in fact, in process, nor in financial services processes.
Conflict of Laws –
Entry, pp. 1085, Vol. 4, Encyclopedia Britannica, 1978
The law of conflict of laws has to do with the resolution of problems that result from the fact that there exists in the world a multiplicity of different sets of courts and different systems of private laws; that is, law dealing with relations between persons. As the earth is presently organized, its surface is divided among nations that are independent of each other and that have no world government above them. Each of these nations maintains its own set of courts in complete independence of every other nation, and each nation has its own set of laws, written or unwritten.
The Law of Conflict of Laws: Function and Sources –
While in such countries as France, Sweden, Peru, or Japan, one single system of law obtains for the whole country, diversity exists in many others, especially nations organized upon a federal pattern, such as the United States, Canada, and, to a minor degree, West Germany, Switzerland, Mexico, or Soviet Union [today, Eastern European nations and Russia]. ( . . . )
Even in countries whose political structure is of the unitary rather than the federal pattern, differences can be found. In the United Kingdom, for example, considerable difference exist between the laws of England, Scotland, the Isle of Man, the Channel Islands, and Northern Ireland. (I’m not sure the extent to which that is true today, my note).
Diversity of laws exists frequently between a country and its colonies. (etc.)
Diversity of laws develops where a country is divided. (etc.)
Diversities of law within one country may also exist on an ethnic or religious basis. (etc.)
Because of the spread of Western civilization over the entire planet, the laws of modern nations, at least insofar as they are concerned with relations between private individuals, present a considerable measure of uniformity. (to some extent, my note).
They are sufficiently different, however, to make it important to know to what situations one ought to apply the law of one country, state, region, or group rather than that of another, especially when dealings are carried on between persons of different law units.
This question of determining which of the world’s numerous laws is the proper one to apply in a particular situation is in itself a legal question.
Those rules of law by which such questions of choice of law are determined constitute a major part of that field of the law that is known as private international law or the law of conflict of laws.
Other parts of this field of the law are concerned with the problem of jurisdiction — that is, the problem of determining in what cases the courts of a particular country or state are, or are not, to go into action — and, furthermore, with the problem of stating what weight, if any, is to be given in one country or province to the judgments and other decisions of the courts or other agencies of other countries or provinces.
In countries adhering to the French legal tradition it is customary to regard as parts of private international law also those rules that deal with nationality and with the legal position of aliens and nonresidents.
In accordance with usage in countries of the English legal tradition, however, the present article will be limited to jurisdiction, foreign judgments, and choice of law.
The name private international law, which is generally used in countries of European-continental tradition, and occasionally also in England, seems to indicate that it is a part of international law — that is, that system of law that is superior to all sovereign states and that, at least in theory, is uniform throughout the world.
This view was commonly held for many centuries, and when the name private international law was coined in the 19th century it was meant to signify that the supranational body of international law consisted of two parts, public and private international law.
While the former would determine the proper conduct of sovereign nations toward each other in both peace and war, the latter would, in a uniform way, tell all nations in what cases their courts ought or ought not to take jurisdiction, under what conditions foreign judgments were to be enforced or otherwise recognized, and in what cases the laws of one nation were to be applied rather than those of another.
pp. 1087, Vol. 4 (same entry – Conflict of Laws)
In the United States, the Constitution provides that “full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.”
Under this clause, the states, and by statute, the territories, are obliged mutually to enforce their money judgments and to recognize the res judicata and law-changing effects of their judicial acts, provided the state by which the judgment was rendered was acting within the scope of its jurisdiction as defined by the Supreme Court of the United States.
The only other defenses that might be raised are grave irregularity of the proceedings in which the judgment was obtained and, in certain cases, lack of finality.
In countries that follow the general principles of the common law, a foreign judgment usually is willingly enforced and otherwise recognized unless (1) the country by which it was rendered lacked jurisdiction according to the notions prevailing in the place where recognition is sought, or (2) the proceedings in which the judgment was obtained were tainted with fraud or were otherwise grossly unfair, or (3) the recognition or enforcement of the foreign judgment would seriously interfere with an important public policy of the country or state where recognition or enforcement is sought.
In addition to these requirements, most civil-law countries (except, of course, those few in which foreign judgments as such are not enforced at all) also demand that reciprocity with the country whose judgment is sought be recognized. (. . . )
Nowhere will a foreign judgment be enforced or recognized unless the country by which it was rendered had jurisdiction to do so under the notions obtaining where recognition is sought. These limits are sometimes wider, however, than those that a country will concede to others for the exercise of their jurisdictions.
pp. 1088, Vol 4
The greatest difficulties have arisen in the field of contract. Many courts and writ have held that problems of the law of contract are generally to be decided under the law of the place where the contract was made.
Under a refinement of this theory (1978, my note), problems concerning performance are to be decided under the law of the place where the contract was to be performed.
But where is a contract made when it was concluded by the exchange of letters between Tokyo and Paris, or San Francisco and Chicago? Where is the contract of sale to be performed when the seller has to obtain the goods in New Orleans and ship them from New York to Amsterdam, and the buyer, a business firm in Oslo, has to pay the price at a bank in London?
furthermore, what intrinsic connection with the parties’ relationship does the place of contracting have at all, if, as frequently happens, the contract was made at a place at which quite accidentally the parties’ minds met. Should German law really be applied to a contract concluded by a Dane and an Italian while they were flying over Germany in an airplane?
The view most widely followed by the courts of both civil-law and common-law countries is that problems concerning an alleged contract are to be decided in accordance with that law which the parties expressly agreed to be applicable, or which is recognizably that law upon the basis of which the parties negotiated and made their contract.
Theoretical objections to this practical view still carry some weight, especially in the United States. Where no particular law can be discovered as the one upon the basis of which the parties transacted their business, detailed differentiations must be made depending on the kind of contract in question (sale, insurance, transportation, contract for services, suretyship, etc.) and on the particular problem to be decided.
Although the field of contract is the most important for international and interstate trade, it is the one beset with the most uncertainties as to choice of law. Fortunately, the substantive laws do not widely differ from one another, and business has learned to avoid many of the difficulties through resorting to arbitration and appropriate drafting. Through skillful draftsmanship the experienced international lawyer can prevent many of the difficulties that can so easily arise under private international law.
(out of the order offered in the text – but important here)
The notion that the courts of a country should ever have to decide problems under foreign law rather than invariably deciding all problems coming before them under the law of their own country is by no means self-evident.
It has its rationale mainly in the thought that it would be unjust to teh parties concerned if a problem were decided under a law that they did not know might cover their situation when they began the transaction that led to the subsequent litigation. (but does not apply to false advertising, misrepresentation, fraud and other illusory, illegal, fraudulent, corrupt, unfair, unscrupulous or criminal business practices, my note, because even at a very basic level, those engaging in it know by its nature to be wrong and likely to fail the merits of any legal test of acceptable practices. – cricketdiane)
(further, on pp. 1088, Vol 4 – Conflict of Laws)
The necessity to apply the law of a foreign country or province, however, constitutes an inconvenience to the court and the parties. Although judges are familiar with the law of their own country, they cannot be expected to be familiar with the laws of the whole world. (but they can read at least as good as I can, my note.) Foreign law must therefore be especially pleaded and proved, often at considerable inconvenience and expense.
European and American scholars of the late 19th centuries attempted to reduce the whole field of choice of law to a few principles that could be expressed in a small number of highly generalized maxims.
Their results, however, proved impractical. Since the problems of choice of law are almost as manifold as those of substantive private law, these efforts turned out to constitute oversimplifications.
Mid-20th-century writers and courts regard it as their task to elaborate patiently those detailed rules of narrow application that are necessary to do justice to the infinite variety of actual life.
Some U.S. scholars also stress the interests of states to implement their policies over divergent policies of other states. The results of the manifold efforts can be found in the works listed in the bibliography. Here no more can be done that state some overall approaches, which must not be regarded as rules of immediate applicability. (their note, not mine.)
(also out of order from the text – )
In their general approach to the problem of jurisdiction, the common-law countries still proceed from the long-obsolete notion that no civil suit could be commenced in any way other than by the defendant’s arrest by the sheriff. Consequently, an action can still be brought in any place in which the defendant is personally served with process, (or in which they own property or have conducted business, my note), even though he may be there only for a few minutes to change airplanes.
In modern times it has come to be widely held, however, that personal service upon the defendant is no longer an indispensable requirement of jurisdiction and that an individual may be sued in the country or state of his residence, even if the summons is not personally pressed upon him. a corporation can always be sued in the country or state in which it has been incorporated.
(and, also out of order – but very interesting – )
As another example, the courts of New York regard themselves as an “inconvenient forum” for suits between nonresidents concerning a tort committed outside New York.
With few exceptions, Anglo-U.S. courts will not try controversies concerning title to, or trespass upon, land situation outside the state. (my note, but this changes when it involves money, securities, exchange of securities, fraud, fraudulent business practices, currency manipulation or currency forms as the property in question.)
(etc. – lots more good information here, but I need to lookup something else.)
Encyclopedia Britannica, 1978
pp. 1085 – 1088; Vol. 4, “Conflict of Laws”
Essentials of Business Law, Second Edition –
1984, 1986, West Publishing Company, St. Paul, Minn.
authors – Smith, Mann, Roberts
pp. 700 – 701, 702 – Part Nine, Regulation of Business
Figure 39 – 3 Restraints of Trade
Restraint – Standard
Price fixing … Per se illegal
Market allocations … Horizontal: per se illegal
Vertical: rule of reason
Group boycotts … per se illegal
Tying arrangements … per se illegal (* if seller has power in tying product or a not insubstantial amount of interstate commerce is affected in the tied product.)
However, in the text –
Economic analysis indicates that a monopolist will use its power to limit production and increase prices. Therefore, a monopolistic market will produce fewer goods at a higher price than a competitive market. Addressing the problem of monopolization, Section 2 of the Sherman Act prohibits monopolies, attempts to monopolize, and conspiracies to monopolize.
Thus Section 2 prohibits both agreements among businesses and, unlike Section 1, unilateral conduct by one firm.
Although the language of Section 2 appears to prohibit all monopolies, the courts have not interpreted it in that manner. Rather, they have required that in addition to the mere possession of market power there also must be either the unfair attainment of the monopoly power or the abusive use of that power once attained.
It is extremely rare to find an unregulated industry with only one firm, so the issue of monopoly power involves defining what degree of market dominance constitutes monopoly power. Monopoly power is the ability to control prices or to exclude competitors from the marketplace. The courts have grappled with this question of monopoly power and have developed a number of approaches, but the most common test is market share.
A market share greater than 75 percent generally indicates monopoly power, while a share less than 50 percent does not. (but what constitutes the actual market base is subjectively determined, my note). A 50 to 75 percent share is inconclusive (1986).
Market share is the fractional share possessed by a firm of the total relevant product and geographic markets, but defining the relevant markets is often a difficult and subjective project for the courts.
The relevant product market, as demonstrated in the case which follows (at the bottom of pages 701 – 702), includes products that are substitutable for the firm’s product on the basis of price, quality, and adaptability for other purposes. For example, although brick and wood siding are both used in buildings as exteriors it is not likely that they would be considered as part of the same product market. On the other hand, Coca Cola and Seven-Up are both soft drinks and would be considered part of the same product market.
The relevant geographic market is the territory in which the firm sells its products or services. This may be at the local, regional, or national level. (or in the cases we have today – in the international arenas, my note.)
For instance, the relevant geographic market for the manufacture and sale of aluminum might be national, whereas that of a taxi company would be local. The scope of the relevant geographic market will depend on such factors as transportation costs, the type of product or services, and the location of competitors and customers.
If sufficient monopoly power has been proved, it must then be shown that the firm has engaged in unfair conduct. The courts have not yet agreed on what constitutes unfair conduct (that is not true even when it was written and certainly not now – my note).
One judicial approach is that a firm possessing monopoly power has the burden of proving that it acquired such power passively or that it had the power “thrust” upon it. An alternative view is that monopoly power, when combined with conduct designed to exclude competitors, violates Section 1. a third approach requires monopoly power plus some type of predatory practice, such as pricing below marginal costs (among others, my note.)
(from – )
Essentials of Business Law, Second Edition –
1984, 1986, West Publishing Company, St. Paul, Minn.
authors – Smith, Mann, Roberts
pp. 700 – 701, 702 – Part Nine, Regulation of Business
excerpt from “Operations Management, Strategy and Analysis” by Krajewski, Ritzman: 1993, Addison-Wesley Publishing Co.
(pp. 296 – 299: also pp. 300 about diseconomies of scale, found below first reference passages and Managerial Practice 8. 1 “The Agony of Too Much – And Too Little – Capacity”)
Capacity is the maximum rate of output for a facility. The facility can be a work station or an entire organization. The operations manager must provide the capacity to meet current and future demand or suffer the consequences of missed opportunities.
Capacity plans are made at two levels. Long-term capacity plans, which we describe in this chapter, deal with investments in new facilities and equipment. These plans look at least two years into the future, but construction lead times alone can force much longer time horizons.
Currently, U.S. investment in new plant and equipment is $550 billion annually (1986). Service industries account for more than 64 percent of the total. Such sizable investments require top-management participation and approval because they are not easily reversed.
Short-term capacity plans, which we discuss in later chapters, are constrained by long-term plans. Short-term plans focus on work-force size, overtime budgets, inventories, (short-term capital plays, etc., my note), and the like, rather than on capital investment decision.
Capacity planning is central to the long-term success of an organization. Too much capacity can be as agonizing as too little, as Managerial Practice 8. 1 demonstrates. When choosing a capacity strategy, managers have to consider questions such as, should we have one large facility or several small ones? Should we expand capacity before the demand is there or wait until demand is more certain? A systematic approach is needed to answer these and similar question and to develop a capacity strategy appropriate for each situation.
Capacity planning requires a knowledge of current capacity and its utilization. A statistic often used to indicate the degree to which equipment, space, or labor (or throughput of product, my note) is currently being utilized is the average utilization rate, calculated as follows:
Average Utilization Rate = Average Output Rate divided by Capacity
and expressed as a percentage. The average output rate and the capacity must be measured in the same terms, that is, time, customers, units, or even dollars.
Output Measures – are the usual choice of product-focused firms. Nissan Motor Company confidently states its capacity to be 450,000 vehicles per year at its Tennessee plant. Capacity is well understood as an output rate because customization is low.
For multiple products, however, the capacity measure must recognize the product mix. For example, ( . . . )
Input Measures – are the usual choice of process-focused firms. For example, managers of a job shop think of capacity as machine hours or number of machines. Just as product mix can complicate output capacity measures, so also can demand complicate input measures.
Demand, which invariably is expressed as an output rate, must be converted to an input measure. Only after making the conversion can a manager compare demand requirements and capacity on an equivalent basis.
(pp. 297 – Managerial Practice 8. 1)
The Agony of Too Much and Too Little Capacity
Too Much Capacity –
The commercial real estate market in most major U.S. cities is sick, (1993) caused in part by the recession in the early 1990s. At the same time many tenants, especially those in the financial industry, are undergoing restructurings expected to cut demand for office space for years to come.
The vacancy rate of office space is 26 percent in Miami, Oklahoma City, Phoenix, and Dallas alike; it is 20 percent nationwide. Values have declined as much as 30 percent in some markets, and the capacity glut hurts everyone. For example, the CenTrust Tower in Miami, a 47-tower building built by a failed thrift for $165 million, was recently sold for only $38 million.
To make matters worse, the real estate industry is suffering from a virus becoming known as the “rollover risk.” Tenants from well-planned and pricey buildings are being lured to cheaper, empty buildings.
With the exception of the credit squeeze, rollover risk may be the single greatest obstacle to the recovery of the real estate market.
“There isn’t a tenant in Washington who pays the rent who isn’t getting two calls a week from brokers asking the tenant to break the lease and move into cheap space elsewhere,” says a banking consultant in Washington, D.C. “The entire market is being cannibalized.”
Too Little Capacity –
In the late 1980s the world’s airlines re-equipped their fleets and vied to buy a record number of commercial passenger jets. Orders for Boeing, Airbus, and McDonnell Douglas surged to more than 2600 planes.
Douglas alone had a backlog of some $18 billion in firm orders for its MD-80 and new MD-11 widebody. That’s enough to keep its plant fully utilized for more than three years.
Despite the number of orders, Douglas’ commercial aircraft division announced a startling loss, Airbus had yet to make money, and even the mighty Boeing fought to improve subpar margins.
The large number of orders caused many problems. For one, Douglas’ suppliers in the metal forging industry were unable to keep pace with sales. Another problem was with its own work force: In two years, Douglas’ work force doubled, but training periods were abbreviated and the new hires were much less productive than seasoned employees.
Plant managers tried to keep on schedule by pushing planes along the assembly process, even if all the work at one particular station had not been completed.
Work was also subcontracted to other plants, including a sister plant that makes combat planes and a leased plant owned by the U.S. Air Force.
Because of the capacity shortage, costs skyrocketed and profits plummeted. By the start of the 1990s, the capacity pressure was relieved because American had cut back on the hypergrowth strategy that had set the pace for the entire airline industry in the 1980s.
Sources: “Office Buildings, Under Pressure Already, Face Threat to Their Leases,” Wall Street Journal, September 27, 1991; and “Planemakers Have It So Good, It’s Bad,” Business Week, May 8, 1989.
(from pp. 297, Operations Management, Strategy and Analysis, 1993)
Diseconomies of Scale –
New Rules Breed Wasteful Mergers – Law in the News pp. 705, Part Nine – Regulation of Business, Essentials of Business Law, Second Ed., 1986
New Rules Breed Wasteful Mergers by Herman Schwartz
Public policy is always fertile ground for irony. Today, for example, the economic landscape is strewn with merger fiascos, but current antitrust policy toward these combinations is increasingly lenient. “economic efficiency” is now the “only goal” of merger policy, according to a former Justice Department official.
As a result, the merger wave of the 1980s surges ahead, reachinng a new peak last week with the Allied Corporation’s $5 billion plaanned union with the Signal Companies, the largest industrial merger ever (outside the oil industry).
This preoccupation with economic efficiency ignores Congressional intent and judicial precedent. The legislative history of the antitrust laws contains almost no mention of efficiency, production or price. Rather, there is an insistent Jeffersonian concern for the small entrepreneur – for social, not economic reasons.
Thus, the Supreme Court has always ruled that efficiencies cannot save an otherwise illegal merger.
Steel mergers were supposed to “rationalize” a sick industry. But LTV, for example, is having so much trouble digesting Republic that, even though LTV’s own steel sales rose substantially in the first quarter of 1985, it lost $156 million and operated less efficiently than the other top steelmakers; before the merger LTV had been among the most efficient.
Elsewhere, the once-voracious ITT will spin off 12 industrial technology acquisitions in its third major asset sale in eight months, with more to follow. G.E. has shed Utah International, after a loss of perhaps $3 billion.
Du Pont’s acquisition of Conoco was described by one market analyst as “dead weight pulling Du Pont down all the time.” And the history of railroad mergers like that of Penn Central (permitted in the name of “efficiency”) is dismal: in 1979, Forbes magazine concluded that 14 out of 17 rail mergers were unsuccessful.
At least some of these deals would have been blocked by an antitrust policy more consistent with Congressional intent and established law. ( . . . )
One merger consultant estimated that 70 percent fail.
(out of order in the content of the article – )
Nevertheless, when the Administration (1985 article, my note), took office, William F. Baxter, then the Assistant Attorney General in charge of anti-trust, promptly redrew Federal guidelines to ease restrictions on mergers between competitors. The guidelines further legitimized virtually any “vertical” merger — between customer and suppliers — or between companies in neither a directly competitive nor supply relationship.
Soon, deals — such as the proposed Allied-Signal merger — were proposed “that never would have been . . . before the Reagan Administration took office,” as one businessman put it. (etc. Last June, the Antitrust Division further softened the guidelines.
Experience shows that the supposed benefits of a merger are often illusory.
( . . . ) Today, Mobil is trying to spin off Montgomery Ward, after pouring over $600 million into it, and is taking a $500 million charge against earnings. Exxon has written off a $1.3 billion investment in Reliance Electric. . . . And Arco’s divestiture of its refining and retailing operations shows that vertical integration may yield not efficiencies, but trouble.
pp. 705, Essentials of Business Law, 2nd Ed.
inset article from New York Times Company, 1985
Managerial Considerations in Job Design and Work Measurement pp. 279 – 281, Operations Management, Strategy and Analysis
Compensation Plans –
Compensation plans based on work measurement typically involve incentive schemes. Those used most often are piece rate and individual incentive plans.
Piece Rate Plans – piece rate is a compensation plan based on the number of units processed during a day or week. (my note – that is whether it is stocks, bonds, investment “deals”, seams in a pair of blue jeans or what management must specify as a “fair day’s work.” – that last part came from the text.)
Individual Incentive Plants – sometimes, incentive plans are used to motivate workers. Such plans reward output that exceeds a predetermined base level. (etc.)
Quality and Compensation Plans – the purpose of incentive pay is to encourage high levels of output from employees. However, a high rate of output may be achieved at the expense of quality. What is the advantage to a company if a worker produces at 115 percent of standard but has a 20 percent defective rate?
In Chapter 3, when we discussed total quality control, we argued that quality at the source is critical for achieving world-class quality performance. Incentive plans that do not recognize and reward quality may not motivate the worker to produce high-quality goods.\
Two basic approaches are used to recognize quality in incentive pans. The first is the autocratic approach, which docks the worker’s pay for defective production or requires the worker to repair all defects at a lower rate of pay.
The second is the motivational approach, which is based on the concept of extra pay for extra effort. (etc.)
Many variants (including game theory popular in the last twenty-five years whereby the extreme levels of compensation, rewards, perks and bonuses of the executives are used as a motivating carrot for all mid-level performs who would be enticed to think they could have that eventually too, my note) of the motivational approach of including quality in work measurement are used in practice. the important point is that quality should be clearly recognized when compensation plans are being developed.
(Apparently, there also needs to be a standard set for what represents “quality” especially in the financial investment industries – because not every deal qualifies as “the deal” nor should it be, as exemplified by yesterday’s Senate hearings with the mid-level management / decision makers of the Wall Street investment firm, Goldman Sachs, – 04-27-10, Senate investigations committee.)
It has resulted in the collapse of large financial institutions, the bailout of banks by national governments and downturns in stock markets around the world. In many areas, the housing market has also suffered, resulting in numerous evictions, foreclosures and prolonged vacancies.
It contributed to the failure of key businesses, declines in consumer wealth estimated in the trillions of U.S. dollars, substantial financial commitments incurred by governments, and a significant decline in economic activity.
Many causes have been proposed, with varying weight assigned by experts. Both market-based and regulatory solutions have been implemented or are under consideration, while significant risks remain for the world economy over the 2010–2011 periods.
And on pages 300 – 301 of the same book – Operations Management, Strategy and Analysis, 1993 -in the section titled “Economies of Scale”
there is also – Diseconomies of Scale
. . . Historically, many organizations have subscribed to the concept of economies of scale. The concept seems simple: Increasing a facility’s size (or scale) decreases the average unit cost.
But in reality, it’s not at all simple. At some point a facility (or business, corporation, bank or conglomerate, my note) becomes so large that diseconomies of scale set in. Excessive size can bring complexity, loss of focus, and inefficiencies, which raise the average unity cost. (etc.)
(Figure 8.1 found on page 300 of the book below – not really applicable)
Figure 8.1 also shows a second dimension to the concept. Not only is there an optimal size for a facility but also an optimal operating level for a facility of a given size. Economies and diseconomies of scale are represented not just between cost curves but also within each one.
As the output rate approaches a facility’s best operating level, economies of scale are realized. Beyond that level, diseconomies set in.
pp. 300 – 301, Operations Management, Strategy and Analysis
My Note – I had another chart or two about these general concepts and some online information that I found awhile back, however – by the time I find it in my computer – it could be awhile. Therefore, I’m going to take a break, start a new blog entry and check online for the ones I was trying to find, which would have to be easier.
Derivatives were suggested to be over $600 Trillion dollars – I don’t think that is included in the GDP . . .
(of anywhere, now that I think about it, my note) – cricketdiane
The fusor was originally conceived by Philo Farnsworth, better known for his pioneering work in television. In the early 1930s he investigated a number of vacuum tube designs for use in television, and found one that led to an interesting effect. In this design, which he called the multipactor, electrons moving from one electrode to another were stopped in mid-flight with the proper application of a high-frequency magnetic field. The charge would then accumulate in the center of the tube, leading to high amplification. Unfortunately it also led to high erosion on the electrodes when the electrons eventually hit them, and today the multipactor effect is generally considered a problem to be avoided.
What particularly interested Farnsworth about the device was its ability to focus electrons at a particular point. One of the biggest problems in fusion research is to keep the hot fuel from hitting the walls of the container. If this is allowed to happen, the fuel cannot be kept hot enough for the fusion reaction to occur. Farnsworth reasoned that he could build an electrostatic plasma confinement system in which the “wall” fields of the reactor were electrons or ions being held in place by the multipactor. Fuel could then be injected through the wall, and once inside it would be unable to escape. He called this concept a virtual electrode, and the system as a whole the fusor.
New fusors based on Hirsch’s design were first constructed in the late 1960s. The first test models demonstrated that the design was effective. Soon they were showing production rates of up to a billion neutrons per second, and rates of up to a trillion per second have been reported.
All of this work had taken place at the Farnsworth Television labs, which had been purchased in 1949 by ITT Corporation with plans of becoming the next RCA. In 1961 ITT placed Harold Geneen in charge as CEO. Geneen decided that ITT was no longer going to be a telephone/electronics company, and instituted a policy of rapidly buying up companies of any sort. Soon ITT’s main lines of business were insurance, Sheraton Hotels, Wonderbread and Avis Rent-a-Car. In one particularly busy month they purchased 20 different companies, all of them unrelated. It didn’t matter what the companies did, as long as they were profitable.
A fusion research project was not regarded as immediately profitable. In 1965 the board of directors started asking Geneen to sell off the Farnsworth division, but he had his 1966 budget approved with funding until the middle of 1967. Further funding was refused, and that ended ITT’s experiments with fusion.
The team then turned to the AEC, then in charge of fusion research funding, and provided them with a demonstration device mounted on a serving cart that produced more fusion than any existing “classical” device. The observers were startled, but the timing was bad; Hirsch himself had recently revealed the great progress being made by the Soviets using the tokamak. In response to this surprising development, the AEC decided to concentrate funding on large tokamak projects, and reduce backing for alternative concepts.
Farnsworth then moved to Brigham Young University and tried to hire on most of his original lab from ITT into a new company. The company started operations in 1968, but after failing to secure several million dollars in seed capital, by 1970 they had spent all of Farnsworth’s savings. The IRS seized their assets in February 1971, and in March Farnsworth suffered a bout of pneumonia which resulted in his death. The fusor effectively died along with him.
Believe it or not – this true story is the real destruction that the Wall Street business approach consistently provides. We might today have actual nuclear fusion to generate electricity for America and the world along with untold countless other wonderful things – if this inventor and his team could’ve had the support of the business he created and the rewards from the inventions he designed.
But no, look what happened in the middle of the story and the damages that occurred as a result – we all live with that diminished real return and so do generations of children and families long past his life or ours. That is because of what he didn’t get to do as a direct result of the greed at the expense of all else which took over the way Harold Geneen mis-handled it. He traded the great breakthroughs of our lifetime to buy up businesses that already existed and didn’t need his help to be available to all of mankind and to improve people’s lives for generations as these inventors were dependent on it and denied it.
And that’s what “Atlas Shrugged” is about – what happens when the intelligent aren’t allowed, the creative aren’t tolerated, the greatest are denied access and the endless possibilities inherent in the human mind are leashed by the hideous short-sighted manipulations of “a few in pursuit of greed above all, and to the exclusion of all else.” (my paraphrase)
– cricketdiane, 04-28-10
This is Mr. Farnsworth’s machine – it is a damn good start – sits on a table top instead of taking up miles and miles of space and the absurd energy used in the Tokamak et al. – and that’s some of what we’ve lost because of Wall Street greed – I hope that Mr. Geneen remains in hell forever –
Standard and Poor’s has downgraded the sovereign debt ratings for both Greece and Portugal, with the Greek debt lowered to junk status. FULL STORY
They were smooth, confident and proved why Goldman employees are known as the best on Wall Street. They explained complex mortgage products and their role in them. It was all very impressive — until the questions started. FULL STORY
My Note –
The other thing that I noticed about the ways that products on Wall Street have been made that profit only when others fail or when loans fail or when the markets are failing or when businesses fail – is this –
That same money which was drawn into that game would’ve otherwise been the same money to invest in the success of businesses, the underwriting of real innovations, research and develop of businesses, start-ups of new businesses and other types of investments which would’ve provided a return at the success of where it was made available.
The tragedy of having brought that money into a game based on making money when failure occurs – it also assured those funds weren’t available to support commercial real estate, retailers, manufacturers, businesses, startups and other truly innovative business and economic things of an advantage to our society. All that money has been tied up in this game to steal it, convert it into bonuses and Wall Street profits to serve themselves and making 100% return to themselves specifically because tens of thousands of people lost their homes and businesses.
Tell the people of Iceland who lost their life savings and all the revenues of their city budgets, their school’s program budgets, their country treasury, their banks and countless businesses – that the money in the pockets of the Wall Street members who sold them those financial products and also made off their banks’ failure wasn’t constructed intentionally to do so.
Ask the people of Greece, Portugal, Ireland, and countless others if there is nothing wrong with what Goldman Sachs, and every other Wall Street banker, investment firm and hedge fund have been and are still doing.
Some theories hold that the practice was invented in 1609 by Dutch trader Isaac Le Maire, a big shareholder of the Vereenigde Oostindische Compagnie (VOC). In 1602, he invested about 85,000 guilders in the VOC. By 1609, the VOC still was not paying dividend, and Le Maire’s ships on the Baltic routes were under constant threats of attack by English ships due to trading conflicts between the British and the VOC. Le Maire decided to sell his shares and sold even more than he had. The notables spoke of an outrageous act and this led to the first real stock exchange regulations: a ban on short selling. The ban was revoked a couple of years later.
Short selling has been a target of ire since at least the eighteenth century when England banned it outright. It was perceived as a magnifying effect in the violent downturn in the Dutch tulip market in the seventeenth century. In another well-referenced example, George Soros became notorious for “breaking the Bank of England” on Black Wednesday of 1992, when he sold short more than $10 billion worth of pounds sterling.
The term “short” was in use from at least the mid-nineteenth century. It is commonly understood that “short” is used because the short seller is in a deficit position with his brokerage house. Jacob Little was known as The Great Bear of Wall Street who began shorting stocks in the United States in 1822.
Short sellers were blamed for the Wall Street Crash of 1929. Regulations governing short selling were implemented in the United States in 1929 and in 1940. Political fallout from the 1929 crash led Congress to enact a law banning short sellers from selling shares during a downtick; this was known as the uptick rule, and this was in effect until July 3, 2007 when it was removed by the SEC (SEC Release No. 34-55970). President Herbert Hoover condemned short sellers and even J. Edgar Hoover said he would investigate short sellers for their role in prolonging the Depression. Legislation introduced in 1940 banned mutual funds from short selling (this law was lifted in 1997). A few years later, in 1949, Alfred Winslow Jones founded a fund (that was unregulated) that bought stocks while selling other stocks short, hence hedging some of the market risk, and the hedge fund was born.
Some typical examples of mass short-selling activity are during “bubbles“, such as the Dot-com bubble. At such periods, short-sellers sell hoping for a market correction. Food and Drug Administration (FDA) announcements approving a drug often cause the market to react irrationally due to media attention; short sellers use the opportunity to sell into the buying frenzy and wait for the exaggerated reaction to subside before covering their position. Negative news, such as litigation against a company, will also entice professional traders to sell the stock short.
During the Dot-com bubble, shorting a start-up company could backfire since it could be taken over at a higher price than what speculators shorted. Short-sellers were forced to cover their positions at acquisition prices, while in many cases the firm often overpaid for the start-up.
In September 2008 short selling was seen as a contributing factor to undesirable market volatility and subsequently was prohibited by the U.S. Securities and Exchange Commission (SEC) for 799 financial companies for three weeks in an effort to stabilize those companies. At the same time the U.K. Financial Services Authority (FSA) prohibited short selling for 32 financial companies. On September 22, Australia enacted even more extensive measures with a total ban of short selling. Also on September 22, the Spanish market regulator, CNMV, required investors to notify it of any short positions in financial institutions, if they exceed 0.25% of a company’s share capital. Naked shorting was also restricted.
In an interview with the Washington Post in late December 2008, U.S. Securities and Exchange Commission Chairman Christopher Cox said the decision to impose a three-week ban on short selling of financial company stocks was taken reluctantly, but that the view at the time, including from Treasury Secretary Henry M. Paulson and Federal Reserve chairman Ben S. Bernanke, was that “if we did not act and act at that instant, these financial institutions could fail as a result and there would be nothing left to save.” Later he changed his mind and thought the ban unproductive. In a December 2008 interview with Reuters, he explained that the SEC’s Office of Economic Analysis was still evaluating data from the temporary ban, and that preliminary findings point to several unintended market consequences and side effects. “While the actual effects of this temporary action will not be fully understood for many more months, if not years,” he said, “knowing what we know now, I believe on balance the Commission would not do it again.”
Short selling stock consists of the following:
In the U.S., in order to sell stocks short, the seller must arrange for a broker-dealer to confirm that it is able to make delivery of the shorted securities. This is referred to as a “locate.” Brokers have a variety of means to borrow stocks in order to facilitate locates and make good delivery of the shorted security.
The vast majority of stocks borrowed by U.S. brokers come from loans made by the leading custody banks and fund management companies (see list below). Institutions often lend out their shares in order to earn a little extra money on their investments. These institutional loans are usually arranged by the custodian who holds the securities for the institution. In an institutional stock loan, the borrower puts up cash collateral, typically 102% of the value of the stock. The cash collateral is then invested by the lender, who often rebates part of the interest to the borrower. The interest that is kept by the lender is the compensation to the lender for the stock loan.
Brokerage firms can also borrow stocks from the accounts of their own customers. Typical margin account agreements give brokerage firms the right to borrow customer shares without notifying the customer. In general, brokerage accounts are only allowed to lend shares from accounts for which customers have “debit balances”, meaning they have borrowed from the account. SEC Rule 15c3-3 imposes such severe restrictions on the lending of shares from cash accounts or excess margin (fully paid for) shares from margin accounts that most brokerage firms do not bother except in rare circumstances. (These restrictions include the broker must have the express permission of the customer and provide collateral or a letter of credit.)
Most brokers will allow retail customers to borrow shares to short a stock only if one of their own customers has purchased the stock on margin. Brokers will go through the “locate” process outside their own firm to obtain borrowed shares from other brokers only for their large institutional customers.
Where shares have been shorted and the company which issues the shares distributes a dividend, the question arises as to who receives the dividend. The new buyer of the shares, who is the “holder of record” and holds the shares outright, will receive the dividend from the company. However, the lender, who may hold its shares in a margin account with a prime broker and is unlikely to be aware that these particular shares are being lent out for shorting, also expects to receive a dividend. The short seller will therefore pay to the lender an amount equal to the dividend in order to compensate, though as this payment does not come from the company it is not technically a dividend as such. The short seller is therefore said to be “short the dividend”.
A similar issue comes up with the voting rights attached to the shorted shares. Unlike a dividend, voting rights cannot legally be synthesized and so the buyer of the shorted share, as the holder of record, controls the voting rights. The owner of a margin account from which the shares were lent will have agreed in advance to relinquish voting rights to shares during the period of any short sale. As noted earlier, victims of Naked Shorting attacks sometimes report that the number of votes cast is greater than the number of shares issued by the company.
As noted earlier, victims of Naked Shorting attacks sometimes report that the number of votes cast is greater than the number of shares issued by the company.
RBS’s aggressive expansion strategy turned the regional Scottish lender into a global bank with a large investment operation. But it backfired.
By the fall of 2008 RBS, one of Britain’s biggest banks, had been nationalized in all but name. The government started with a minority holding that fall, when it pulled the bank from the brink of collapse, but continued to tighten its grip as the share price eroded. By February 2009 it owned a 68 percent stake, allowing it to exert de facto control over bank management — which was replaced in a shake-up — as well as in lending and strategic decisions.
In the last week of February, the bank announced a £24.1 billion loss for the year, the largest in British corporate history. The bank has become the first bank to sign up for Britain’s asset protection plan. RBS said it would dump £325 ($466 billion) of mainly toxic assets into the program, a step that could raise the state’s stake to 95 percent.
LONDON — To the bankers here, it seemed like a chance to make a quick $7 million — risk free.
Instead, their sweet deal turned into a $840.1 million debacle.
In May 2007, a handful of bankers in London agreed to take a role in a complex mortgage investment being devised by Goldman Sachs.
Abacus, which is now at the center of accusations that Goldman defrauded investors, was one of countless mortgage deals that ricocheted between Wall Street and Europe during the heady days of the boom.
Indeed, after R.B.S., the biggest loser in Abacus was IKB Deutsche Industriebank of Germany, which was a big player in such mortgage investments.
( . . . )
The $840.1 million that Abacus cost R.B.S. represented a small part of the crippling losses that led the British government to rescue the bank in the costliest bailout of any bank worldwide. Today R.B.S. is all but nationalized; the British government owns about 84 percent of it.
When the Abacus investment soured, Royal Bank of Scotland, under the terms of the deal, was obligated to cover the $840.1 million in losses. The British bank paid that sum to Goldman Sachs, which, in turn, paid John A. Paulson, the hedge fund manager who had bet against the deal. According to the Securities and Exchange Commission, Goldman had devised the investment to fail from the start so that Mr. Paulson could wager against it.
Muckety Map of John Paulson –
A passenger waited for a train at the Rossio station in Lisbon as transport workers in both Portugal and Greece went on strike against austerity measures on Tuesday.
FRANKFURT — Greece’s credit rating was lowered to junk status Tuesday by a leading credit agency, a decision that rocked financial markets and deepened fears that a debt crisis in Europe could spiral out of control.
The ratings agency, Standard & Poor’s, downgraded Greece’s long-term and short-term debt to non-investment status and cautioned that investors who bought Greek bonds faced dwindling odds of getting their money back if Greece defaulted or went through a debt restructuring. The move came shortly after S.&P. reduced Portugal’s credit rating and warned that more downgrades were possible.
(etc. – and now the investment funds that may be holding that debt will probably have to dump it because its now called, “junk” along with the mega-interest rates and fees that Greece is paying on it regardless, and the credit default swaps will all be paid out to the bondholders and hedge funds, the investment firms and inside players at 100% on the dollar from whoever is holding those – it is obscene.)
“This is a signal to the markets that the situation is deteriorating rapidly, and it’s not clear who’s in a position to stop the Greeks from going into a default situation,” said Edward Yardeni, president of Yardeni Research. “That creates a spillover effect into Portugal and Spain and raises the whole sovereign debt issue.”
( . . . )
My Note – there is no Wall Street reform that is going to fix this. Something else is required to fix this, probably taking all the money from the Wall Street players and freezing their accounts to teach them the meaning of the term – ZERO. Al Capone had to be taught the meaning of the word Zero and so should it be explained to them. Freeze their accounts, their company accounts and their personal accounts – stop the process by which they have gained at the expense of the funds they stole from every individual across the US and in every country it has affected.
Those funds did not belong to them. They weren’t playing with their own money. They probably borrowed the $7 million dollars to pay for the credit default swap bought from RBS which required the depositors, investors and citizens of the United Kingdom and the United States to pay out $840 million (and no telling how much more on the same deal to other players involved. – John Paulson made $1 Billion dollars on the deal – how did he come up with that much money on it? Whose life savings was that he put in his pocket? How many children’s educations did he divert to put those profits into his own bank account? Did he ever do anything to earn it or did he do no more than find a sophisticated way to convert other people’s money into his own?)
– cricketdiane note, 04-28-10
Apr 18, 2010 … John Paulson made $3.7 billion in 2007, $2 billion in 2008. He made $2.3 billion last year to . . .
If you’re providing information or a photograph about John A. Paulson that you would like us to include in the Muckety database, please cite the source.
George Bailey’s desperate efforts to avoid the collapse of Bailey’s Savings & Loan have a special resonance this Christmas.
The number of U.S. bank failures in 2009 has reached 140, the highest number in 17 years. Many experts, including FDIC Chair Sheila Bair, predict that the number will increase next year.
While the FDIC risks losing millions on each failure, investors with cash reserves are seizing opportunities.
The most recent batch of takeovers involved some prominent names: billionaires J. Christopher Flowers, John Paulson and George Soros, Texas banker D. Andrew Beal and Steven T. Mnuchin, head of Dune Capital Management.
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Flowers, Paulson and Soros invested with Mnuchin in OneWest Bank, which bought IndyMac bank earlier this year. Last week, the firm bought the failed First Federal Bank of California.
My Note –
So, Mr. Paulson was a managing director at Bear Stearns –
Bear Stearns Companies Inc. – managing director
and now owns IndyMac bank – and First Federal Bank of California
Here is a little more of an overall look at the bigger picture –
muckety map – see this page and roll over names below map
Hedge fund industry consolidation continued through the end of 2008, with a record number of hedge funds liquidating in the fourth quarter, according to a study from Hedge Fund Research Inc. released in March.
During the fourth quarter, investors withdrew a record amount of just over $150 billion from hedge funds, and 778 funds liquidated during the period, more than doubling the previous quarterly record of 344, set in the third quarter.
The total number of liquidations in 2008 was 1,471, an increase of more than 70 percent from the previous record of 848 liquidations in 2005.
In most jurisdictions hedge funds are open only to a limited range of professional or wealthy investors who meet certain criteria set by regulators but, in exchange, hedge funds are exempt from many regulations that govern ordinary investment funds. The regulations thus exempted typically include restrictions on short selling, the use of derivatives and leverage, fee structures, and on the liquidity of interests in the fund. Light regulation and performance fees are the distinguishing characteristics of hedge funds.
The net asset value of a hedge fund can run into many billions of dollars, and the gross assets of the fund will usually be higher still due to leverage. Hedge funds dominate certain specialty markets such as trading within derivatives with high-yield ratings and distressed debt.
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Federal investigators have identified 41 foreign companies helping Iran to develop its energy capacity.
A hedge fund is a vehicle for holding and investing the money of its investors. The fund itself has no employees and no assets other than its investment portfolio and cash. The portfolio is managed by the investment manager, which is the actual business and has employees.
As well as the investment manager, the functions of a hedge fund are delegated to a number of other service providers. The most common service providers are:
The legal structure of a specific hedge fund – in particular its domicile and the type of legal entity used – is usually determined by the tax environment of the fund’s expected investors. Regulatory considerations will also play a role. Many hedge funds are established in offshore financial centres so that the fund can avoid paying tax on the increase in the value of its portfolio. An investor will still pay tax on any profit it makes when it realizes its investment, and the investment manager, usually based in a major financial centre, will pay tax on the fees that it receives for managing the fund.
Around 60% of the number of hedge funds in 2009 were registered in offshore locations. The Cayman Islands was the most popular registration location and accounted for 39% of the number of global hedge funds. It was followed by Delaware (US) 27%, British Virgin Islands 7% and Bermuda 5%. Around 5% of global hedge funds are registered in the EU, primarily in Ireland and Luxembourg. 
In contrast to the funds themselves, investment managers are primarily located onshore in order to draw on the major pools of financial talent and to be close to investors. With the bulk of hedge fund investment coming from the U.S. East coast – principally New York City and the Gold Coast area of Connecticut – this has become the leading location for hedge fund managers. It was estimated there were 7,000 investment managers in the United States in 2004.
London is Europe’s leading centre for hedge fund managers, with three-quarters of European hedge fund investments, about $400 billion, at the end of 2009. Asia, and more particularly China, is taking on a more important role as a source of funds for the global hedge fund industry. The UK and the U.S. are leading locations for management of Asian hedge funds’ assets with around a quarter of the total each.
Although hedge funds are investment companies, they have avoided the typical regulations for investment companies because of exceptions in the laws. The two major exemptions are set forth in Sections 3(c)1 and 3(c)7 of the Investment Company Act of 1940. Those exemptions are for funds with 100 or fewer investors (a “3(c) 1 Fund”) and funds where the investors are “qualified purchasers” (a “3(c) 7 Fund”). A qualified purchaser is an individual with over US$5,000,000 in investment assets. (Some institutional investors also qualify as accredited investors or qualified purchasers.) A 3(c)1 Fund cannot have more than 100 investors, while a 3(c)7 Fund can have an unlimited number of investors. The Securities Act of 1933 disclosure requirements apply only if the company seeks funds from the general public, and the quarterly reporting requirements of the Securities Exchange Act of 1934 are only required if the fund has more than 499 investors. A 3(c)7 fund with more than 499 investors must register its securities with the SEC.
In order to comply with 3(c)(1) or 3(c)(7), hedge funds raise capital via private placement under the Securities Act of 1933, and normally the shares sold do not have to be registered under Regulation D. Although it is possible to have non-accredited investors in a hedge fund, the exemptions under the Investment Company Act, combined with the restrictions contained in Regulation D, effectively require hedge funds to be offered solely to accredited investors. An accredited investor is an individual person with a minimum net worth of $1,000,000 or, alternatively, a minimum income of US$200,000 in each of the last two years and a reasonable expectation of reaching the same income level in the current year. For banks and corporate entities, the minimum net worth is $5,000,000 in invested assets.
In December 2004, the SEC issued a rule change that required most hedge fund advisers to register with the SEC by February 1, 2006, as investment advisers under the Investment Advisers Act. The requirement, with minor exceptions, applied to firms managing in excess of US$25,000,000 with over 14 investors. The SEC stated that it was adopting a “risk-based approach” to monitoring hedge funds as part of its evolving regulatory regimen for the burgeoning industry. The new rule was controversial, with two commissioners dissenting. The rule change was challenged in court by a hedge fund manager, and, in June 2006, the U.S. Court of Appeals for the District of Columbia overturned it and sent it back to the agency to be reviewed. See Goldstein v. SEC. In response to the court decision, in 2007 the SEC adopted Rule 206(4)-8. Rule 206(4)-8, unlike the earlier challenged rule, “does not impose additional filing, reporting or disclosure obligations” but does potentially increase “the risk of enforcement action” for negligent or fraudulent activity.
In February 2007, the President’s Working Group on Financial Markets rejected further regulation of hedge funds and said that the industry should instead follow voluntary guidelines. In November 2009 the House Financial Services Committee passed a bill that would allow states to oversee hedge funds and other investment advisors with $100m or less in assets under management, leaving larger investment managers up to the Securities and Exchange Commission. Because the SEC currently regulates advisers with $25m or more under management, the bill would shift 43% of these companies, or roughly 710, back over to state oversight
Hedge funds are similar to private equity funds in many respects. Both are lightly regulated, private pools of capital that invest in securities and compensate their managers with a share of the fund’s profits. Most hedge funds invest in relatively liquid assets, and permit investors to enter or leave the fund, perhaps requiring some months notice. Private equity funds invest primarily in very illiquid assets such as early-stage companies and so investors are “locked in” for the entire term of the fund. Hedge funds often invest in private equity companies’ acquisition funds.
Between 2004 and February 2006, some hedge funds adopted 25-month lock-up rules expressly to exempt themselves from the SEC’s new registration requirements and cause them to fall under the registration exemption that had been intended to exempt private equity funds.
(from wikipedia hedge funds entry)
Hedge funds came under heightened scrutiny as a result of the failure of Long-Term Capital Management (LTCM) in 1998, which necessitated a bailout coordinated (but not financed) by the U.S. Federal Reserve. Critics have charged that hedge funds pose systemic risks highlighted by the LTCM disaster. The excessive leverage (through derivatives) that can be used by hedge funds to achieve their return is outlined as one of the main factors of the hedge funds’ contribution to systemic risk.
The ECB (European Central Bank) issued a warning in June 2006 on hedge fund risk for financial stability and systemic risk: “… the increasingly similar positioning of individual hedge funds within broad hedge fund investment strategies is another major risk for financial stability, which warrants close monitoring despite the essential lack of any possible remedies. Some believe that broad hedge fund investment strategies have also become increasingly correlated, thereby further increasing the potential adverse effects of disorderly exits from crowded trades.” However the ECB statement has been disputed by parts of the financial industry.
The potential for systemic risk was highlighted by the near-collapse of two Bear Stearns hedge funds in June 2007. The funds invested in mortgage-backed securities. The funds’ financial problems necessitated an infusion of cash into one of the funds from Bear Stearns but no outside assistance. It was the largest fund bailout since Long Term Capital Management’s collapse in 1998. The U.S. Securities and Exchange commission is investigating.
However, hedge funds played almost no role in the vastly greater 2008 banking crisis. (interesting opinion statement in the wikipedia entry but not true – check the news from the hearings in the Congress and in the media at the time, my note)
Paulson, the founder and president of the hedge fund Paulson & Company, made $3.7 billion in 2007, according to an annual listing of the 50 most highly paid hedge fund managers.
The list compiled by Institutional Investor’s Alpha Magazine was previewed on the magazine’s website yesterday.
Paulson acquired his money by betting against the subprime mortgage market, using a complicated system that increased his earnings as the value of financial instruments bundling the mortgages dropped.
In other words, as the world got poorer, Paulson got richer.
He was by no means alone.
The list of top managers shows four other billion-dollar earners.
Philip Falcone of Harbinger Capital Partners earned $1.7 billion and Kenneth Griffin of Citadel Investment Group came away with $1.5 billion.
The Wall Street Journal wrote in January that Paulson had told friends he was going to increase his charitable giving to help those in need.
In October 2007, he donated $15 million to the Center for Responsible Lending. That money was to help families about to lose their mortgages.
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By the end of last year (2007), the firm had $28 billion in assets, an increase in $22 billion from the previous year, the Times reported.
In 1994, Paulson started Paulson & Co. with $2 million.