HBLR Online is a portal to timely pieces about recent developments in business law. As an important forum for opinion and scholarship, HBLR Online is designed to be a cutting edge guide to developments in the field of business law. HBLR Online also provides opportunities for student members to develop their own editing and writing skills. Accordingly, HBLR Online will contain pieces by students as well as outside contributors.
Many national and subnational units of government see a need for more inclusive money, payment, and retail banking systems for the capture, storage, and transfer of spendable value among their constituents. Existing and still proliferating payments platforms, most provided by for-profit private sector entities, exclude too many people, and extract too much value in the form of needless transaction charges and other rents, to be up to the task of efficiently affording this essential commercial and financial utility to the full public on sensible terms. This Article sketches a smart-device-accessible platform— the ‘Digital Dollar Platform Plan’—which, thanks to new payment technologies, can easily be put in to place and administered by any unit or level of government with a view to supplying this critical commercial and financial infrastructure to all of its constituents.
† Edward Cornell Professor of Law and Finance, Cornell Law School; Visiting Professor of Finance, Georgetown McDonough School of Business; Senior Counsel, Westwood Capital, LLC; Co-Founding Director, Digital Fiat Currency Institute; Board Member, Public Banking Institute. The author has drafted legislation that would institute a version of the plan here discussed in the State of New York. This legislation has now been proposed by Assemblyman Ron Kim in the New York State Assembly and Senator Julia Salazar in the New York State Senate. See Empire State Inclusive Value Ledger Establishment & Administration Act, H.R. 8686, 2019 Assemb. Reg. Sess. 2019-2020. (N.Y. 2019), https://assembly.state.ny.us/leg/?default_fld=&bn=A08686&term=2019&Summary=Y&Actions=Y&Text= Y&Committee%26nbspVotes=Y&Floor%26nbspVotes=Y.
Timo Matthias Spitzer, LL.M. (Wellington)†
We are living in times of drastic change and global legal, economic, and political turmoil, hoping for the best but expecting the worst. A focus on the shareholder may drive managers toward profit maximization, often with limited incentives to include environmental, governance, and social factors into corporate decisions. Crises show the need for human leadership with integrity to realign companies with stakeholders besides the shareholder, including the wider society.
Neither the regulator nor technology can replace the need for human leadership with integrity. As to supervision and best-in-class compliance policies, overregulation may even prevent directors from seeing the forest for the trees, and hamper their abilities to make moral judgment calls, as it is impossible to regulate all possible scenarios in advance. Technology supports cost- efficiency, but an irresponsible reliance may even be dehumanizing, as programs can reflect values of software developers, and artificial intelligence may inadvertently adopt societal bias, contributing to a moral dilemma.
International corporate governance codes – as exemplarily analyzed herein – recognize the advantages of moving toward a wider stakeholder inclusion, but such codes serve as recommendations only when they are unbinding in nature. To achieve a lasting solution, it would require introducing a legal entity model, which includes all relevant stakeholders in the company’s decision-making process. However, this would require material corporate law reforms, which are difficult to achieve and implement in the short-term and in the current climate.
As a practical solution, the elevation of the General Counsel (GC) as a strong and independent leader to the C-suite level would support the Chief Executive Officer (CEO) in achieving corporate sustainability through leadership with integrity. Such promotion would enhance the role of the GC as a proactive business partner and ultimately a protector of the corporation. The revised responsibility would still include assessing legal and compliance matters but extend toward assisting the CEO in strategy, budgeting, governance, human resources, and other key matters for the company.
†Board Member and Adjunct Professor at the Institute for Law and Finance, Goethe University Frankfurt. The author would like to thank his team, in particular Cedric Liesens, Kajetan Sitko and Lukasz Lorent, as well as Julia Bayón Pedraza for being a role model and true leader. Kudos to the Association of Corporate Counsel, the International Bar Association and The Legal 500 for providing a forum for the global legal in-house community.
Chimène I. Keitner & Harry L. Clark
Virtually without exception, conducting business across borders today means being connected to the Internet. The U.S.-Mexico-Canada Trade Agreement (USMCA), which is awaiting implementation by Congress, would become the first operative United States free trade agreement to include a chapter devoted to “digital trade.” The USMCA provisions on digital trade build on the electronic commerce chapter in the Trans-Pacific Partnership (TPP, now CPTPP)—a multilateral trade agreement that the Obama Administration negotiated, but the Trump Administration rejected. As the United States continues to negotiate the conditions for its bilateral trade relationships, cybersecurity concerns are likely to feature in the discussions.
As a general matter, trade agreements seek to reduce barriers to cross-border trade. The prospect of negotiating a trade agreement can be used as a “carrot” in foreign relations, whereas punitive measures such as sanctions and tariffs are used as “sticks.” Meanwhile, growing concerns about cybersecurity and the perceived risks posed by foreign technology and foreign control over data create pressures for more trade-restrictive arrangements. This essay examines provisions relating to digital trade and cybersecurity against the backdrop of these potentially competing interests. We begin by describing current efforts to address cybersecurity-related concerns in trade treaties, with a focus on the USMCA. Next, we address concerns at the intersection of cybersecurity and national security. Third, we identify an apparent trend towards company-specific arrangements rather than global regimes. Finally, we offer an assessment of current efforts to use trade treaties to resolve cybersecurity and digital trade challenges.
 Office of the U.S. Trade Representative, Agreement between the United States of America, the United Mexican States, and Canada, Nov. 30, 2018; see Roy Blunt, USMCA: Where Things Stand, Senate Republican Pol’y Comm. (Mar. 26, 2019), https://www.rpc.senate.gov/policy-papers/usmca-where-things-stand.
 See, e.g., Anupam Chander, The Coming North American Digital Trade Zone, Council on Foreign Rel. (Oct. 8, 2018), https://www.cfr.org/blog/coming-north-american-digital-trade-zone (observing that “the TPP is dead, long live the TPP”).