Mzungu on Law

When the statues come down

2020-06-09T23:38:00.000-07:00

The unnecessary killing of George Floyd led to historic unrest. All over the world protestors in support of #BlackLivesMatter are defacing walls and statues with the words “I can’t breathe.” The protests are resulting in statues being removed one way or another.

In the city of Bristol, England a bronze statue of Edward Colston – former slave trader – was torn down and thrown into the harbor. <= Check out the BBC interview with Bristol’s Mayor Marvin Rees! In multiple cities in Belgium, statues of King Leopold II were set on fire or defaced. Belgian’s colonial history in Africa under Leopold was brutal and dark. In Antwerp, a defaced statue of Leopold was taken down by the city and delivered to a museum for restoration and storage. An act to be repeated by cities in the US.

A few days ago, in the US city of Philadelphia, a statue of a former Police Commissioner and Mayor Frank Rizzo was removed by the city. The removal was already planned due to the renovation of the plaza where the statue sat. The statue was defaced during #BLM protests and removal was expedited. In the following days, a mural of Frank Rizzo at an Italian market in South Philly was painted over.

My family has been in Pennsylvania for centuries. I lived outside Philadelphia, in East Norriton Township, as a child when Frank Rizzo was mayor (1972-1980). Race was very important then but not in a healthy way. I grew up in white privilege. There was great division between black and white people at the time exacerbated by Rizzo’s support of police brutality which was particularly anti-black. My parents pulled me out of public school (free) and sput me in a Catholic one for a few years due to violent racial problems between students at school.

In the US state of Virginia, The Mayor of the city of Richmond, also decided to voluntarily remove the statue of General Robert E. Lee, a Confederate (Southern) General from the US Civil War. Beginning July 1^st of this year legislation gives Virginia cities the discretion to remove Confederate statues. That law was passed in April 2020 and ended a former prohibition in Virginia of the removal of Confederate war memorials.

Governor Northam of Virginia announced that the statue of Robert E. Lee in Richmond would come down immediately and put in storage. Shortly after that announcement, a judge temporarily blocked the removal of the statue for 10-days in response to a speedily filed claim of irreparable harm should it come down. The statue sits on a portion of land in the city of Richmond that was deeded to the state. The effect of the language of the deed on removal of the statue will be resolved in the courts review. It must be pointed out that threats of removal of this same statue sparked the Unite the Right march in Charlottesville, VA in 2017.

I lived in Richmond, VA while at school at the University of Richmond. I was there in 1984 when the Richmond Spiders Men’s basketball team made it to the NCAA tournament. Charles Barkley played for Auburn in that game. One of my many part-time jobs in college was as a bartender and waitress for the Country Club of Virginia. Race was also very important and equally unhealthy but, in a manner, exceedingly different from Philadelphia.

In the 70s, Philadelphia saw protests and journalists speaking out about race inequality and police corruption. Richmond in the 80s was a walk back in time. It was sleepy and asleep. There was no hope for equality given the deep, ingrained institutional bias against black people. The same Virginia Governor Northam who wants to pull down Robert E. Lee, admitted then denied being photographed in blackface in a Medical School yearbook photo from the 1980s.

White privilege is real. Unwinding it in America will take a great deal of dialogue and education. We cannot forget intersectionality. For every Person of Color who is disabled, a woman, or trans or any marginalized identity – they are experiencing layers of bias and overlapping discrimination.

Both the City of Philadelphia (City of Brotherly Love) and the State of Virginia (Virginia is for Lovers) have played crucial roles at important points in American history – Founding Fathers (and Mothers), American Revolution, Civil War. I do not see them as leaders right now but they might be bell-weathers for concrete change.

#AmericanSpring

2020-06-02T22:04:00.002-07:00

“I wish I could say that racism and prejudice were only distant memories. We must dissent from the indifference. We must dissent from the apathy. We must dissent from the fear, the hatred and the mistrust…We must dissent because America can do better, because America has no choice but to do better." - Thurgood Marshall

U.S Embassies in Africa, in an unprecedented fashion, have condemned the death of George Floyd at the hands of the Minneapolis police. Additionally, the head of the African Union Commission, Moussa Faki Mahamat, rejected the “continuing discriminatory practices against Black citizens of the United States of America." America has a problem with systemic racism. The world is watching. COVID19 may have made this moment of nationwide civil unrest possible. Difficult to know if it will last or if lasting change will be the result.

The State of Minnesota Department of Human Rights has opened an investigation into the Minneapolis Police Department. This type of probe can reveal ways to correct the police departments history of racial discrimination. But we have been here before. After the killing of Michael Brown in Ferguson, Missouri in 2014, the US Department of Justice opened Federal Civil Rights investigations. Some things changed and things remained the same. Police wear body cameras but the Floyd killing went viral based on a bystander video, not a police body cams. What provides some hope is the speed with which the police officer involved was charged with a crime. That is new. And it seems that COIVD19 may have prepared some of the US to have this dialogue on the streets and online.

COVID19 in the US saw the rise of the effective and powerful state Governor. That was new.

In the wake of a failed US Federal Government response to the Pandemic, California’s Governor Gavin Newsom and New York Governor Andrew Cuomo rose in power and profile on the national stage as leaders in combatting the virus. We listened and watched online no matter what state we lived in. I live in California and Newson is a particular hero in most parts of the state.

There are many layers to racism and inequality in the US. America had already begun some discussion of the inequitable impact of COVID19 - closures, infection rates, access to affordable healthcare had been the national and state dialogue. All of the dialogue was virtual. Months stuck at home with no healthy outlet for frustration on many levels.

There is some evidence of outsiders aggravating the protests. What is different from the Ferguson protests is the use of helpful words such as systemic racism, white privilege, and bias. This new language that white America must face, digest, and embrace is a healthy step forward. Privilege is unearned and unasked for. The challenge is to generate the momentum to move to the next step in our understanding in order to allow a broader discussion of police abuse of power and bias toward those of African descent. Also, the US must face its limitations and approach its role on the international stage with a great deal more humility.

#LARain 2018

2018-01-08T19:14:00.001-08:00

It is 2018 and the rain is amazing. The house feels like a boat floating.

This blog is changing course. While my focus is Africa, I want to include new fields of interest: Cannabis, teaching undergraduate & graduate law, and guest posts with my students. My students want to talk about the most amazing things - free speech on campus, millennials learning, millennials working. Africa working and other things.

Canna & Africa, Cannatech, learning and capital markets are all interconnected & integrated. So much interesting writing to take place. Did not feel like starting a new blog; do not really care who follows me; so jazzed about writing new things so here it is.

Cannabis and how it relates to business law is the most important thing occurring in California law today. Given the Sessions Memo it might be the coolest things occurring in US law today. California is set to make billions on Cannabis. Cannabis business need to know how to run a legit business.

I will talk about this on this blog.

Mexico City, LSA 2017

2017-06-25T21:46:00.002-07:00

South Africa, Ghana, Nigeria, California !!!

Africa at Law and Society

2017-06-25T21:44:00.000-07:00

This past week the Law And Society Association (LSA) met for its annual meeting in Mexico City, Mexico.
There was a robust African presence.

In 2016, LSA provided an opportunity for members to seek grant funded travel for academics in remote locations to attend the international conference in Mexico. The only requirement was the establishment of an International Research Consortium (IRC) with a specific goal. IRC 24 Africa Financial Regulation was created and we received funding for 4 Africa based academics to travel to Mexico. Only Prof. Tsheop Mongalo, Monash South Africa was able to attend. The others fell foul of arcane University reimbursement policies and Visa restrictions.

Great event, great discussions and reinvigorated my focus on financial regulation in Africa.

Please check out my latest publication: 23 J.L. Bus. & Eth. 101, Winter, 2017

EMERGING AFRICAN CAPITAL MARKETS AND GLOBAL FINANCIAL STANDARD-SETTING: PERMITTING ALL VOICES TO BE HEARD

US SEC and proposed changes to crowdfunding rule for offer and sale of securities

2015-11-07T20:48:00.000-08:00

Raising capital through crowdfunding is evolving and the securities rules have not kept up with business practice. Here are some links to informative discussions on the proposed changes to the US Securities and Exchange Rule 147 and the limitations of those changes. The changes would allow the offer and sale of securities through crowdfunding on the internet through an exemption and not a safe harbor. The new changes propose to facilitate intrastate and regional securities offerings.

See the links below.

Crowdfunding discussion

SEC press release

ZIm farmers judgment forces the sale of a home in SA

2015-10-25T21:17:00.003-07:00

I previously wrote about a Southern African Development Community (SADC) Tribunal ruling that resulted in a judgment in the South African Constitutional Court. That judgment resulted last month in the sale of a home in Cape Town that was attached for settlement of monies owed.

While described as a symbolic victory, the judgment still has the power to cause other sales to satisfy it. The lawsuit to enforce the decision of the SADC tribunal demonstrated that civil law functions in Southern Africa, with some help.

Interestingly, a case will be heard in a South African court early next year regarding the complicity of the South African Government in the suspension of the SADC Tribunal in 2011. I blogged about the suspension here. The SADC Tribunal is the forum previously given jurisdiction by member states of SADC over human rights violations by those states.

The missing voice of Africa

2015-10-25T20:43:00.001-07:00

After the Asian financial crisis, the voice of emerging economies grew at the global level. Paul Martin, the first chair of the new G20 considered it imperative to the reform of the international financial architecture. Why was the voice of Africa not amplified after the most recent crisis?

I do not know the answer but my guess is perpetuation of parternaistic notions.
Here is a draft version of my most recent essay on the matter.

“…inclusiveness lies at the heart of legitimacy and effectiveness”[1]

Incumbent players in the global capital markets construct barriers to financial development in Africa through the imposition of best standards and policy, created without significant enough input from Africa, in an effort to harmonize securities regulation suiting primarily developed markets, not developing or emerging markets predominantly found in Africa.[2]Capital markets, diverse and distinct by nature, are capable of providing a ladder out of poverty through, for example, capital access for water and road system projects, IT development, and permitting people to collectively share in prosperity. Africa has experienced steady growth[3]and now participates to a greater extent than ever to the global domestic product – developing world consumers are buying U.S products. [4]We are a global economy. This necessitates that dominant players in the global economic arena shed paternalistic views of Africa and incorporate in the policy dialogue at the global level emerging and developing African economies. Such inclusion is paramount for effective global financial governance. [5]

Extreme poverty is reduced worldwide but still very present in sub-Saharan Africa despite steady and continued growth in the region.[6] The markets in sub-Saharan Africa are unique because of poverty but also because they are African.[7]Nations, and therefore national exchanges, of Africa share the continent, nevertheless they are distinguished by geography, demographics, history, geology, and level of development. That unique context has not previously been integrated in the legal and economic literature debating how to achieve growth in these capital markets.^{^[8]} This essay argues that the distinctness of Africa mandates that African capital markets have a more meaningful presence and voice in policy and standard setting for global legal matters such as global securities regulation. African capital markets, unencumbered by unrealistic notions of legal conformity and better situated to contribute, will then evolve in a healthy, inclusive global environment reflecting honest global membership rather than an outdated, paternalistic, neo-colonial model of global participation.

Financial integration in the global economy is defined by the International Monetary Fund (IMF), a global international organization, as a country’s linkages to international capital markets.[9] As integrated economies experience the after-effects of one another’s financial predicaments, the impetus to establish global standards escalate for industries such as international accounting, corporate governance, and securities regulation in the interest of crisis prevention.[10]Emerging and developed markets strive for inclusion in the global economic community to share in the prosperity and possibility. A functioning and stable capital markets can create opportunity domestically and also attract outside investment. Inclusion comes with the expectation of having achieved a stated international standard. This is not uncommon Industries with global members regularly establish best practices and standards.[11]

International financial standards, specifically, are complex and commonly created by a small-community of experts.[12]Moreover, politics plays a role in international standards when they involve public and private entities.[13]For the most part, across the globe, domestic capital markets contain that public and private partnership. [14]Furthermore, there are associated costs for complying with international standards which will vary depending on levels of economic development.[15]The developing economy may bear a greater burden when asked to comply with a standards due to weak financial infrastructure, job skills deficits in the workforce and political instability. These characteristics described above were exactly what led to an increased voice, albeit ever so slightly, of emerging economies in the setting of policy for the global economy. The Group of 20 was created, expanded from the Group of 7[16], signaling a shift to a more inclusive, diverse group in dialogue concerning global economic governance.[17]This shift was in recognition that emerging economies needed to contribute to rule-making at the global level.[18]It was recognized that the powerful few had for too long established economic policy for the world with catastrophic economic results.[19] The recognition that global policy must be made by inclusive institutions was given lip service after the Global Financial crisis but no changes were implemented.[20]This lack of inclusiveness is evident in organizations that set policy for regulation of the capital markets. International securities regulation standards are set by the International Organization of Securities Commissions (IOSCO). It has historical been controlled by developed economies and is now slowly adding emerging market members. It is too little, too late and more must be done. Furthermore, this essay suggests that it is this very lack of representation at the rule-making table that prevents African capital markets from reaching their potential.

IOSCO was established in the 1970’s with the purpose to set global standards for world securities exchanges, [21]over 90 percent of the world stock exchanges are members.[22]The IOSCO has a board and committees which set policy. Only in 2013, did the IOSCO allow, for the first time, an African member on the Growth and Emerging Markets Committee.[23]The Chair of the Africa/Middle East Regional Committee is the Director General of the Securities and Exchange Commission of Nigeria.[24]The governing board of IOSCO was previously reserved for the largest capital market countries but in 2014 two seats were made available for emerging markets,[25] and the stated goals of the organization are to press forward the Financial Stability Board[26]and G20 agendas, which have little or no African representation. That same governing board has 34 members with 53 percent representation from the largest capital markets based on market capitalization.[27]The growth and emerging markets committee currently has a member from South Africa. Membership in IOSCO is a key part of a developing and emerging capital markets entry into the global economic marketplace historically. However, its membership still reflects the same hegemony that was rejected 15 years ago only now Asia is sitting at the table.[28]The reassessment regarding institutional inclusion that occurred at the global level after the financial crises’ of the late 1990’s did not take place after the recent financial crisis. And yet, economies are integrated like never before and are vulnerable to systemic risks leading some economists to argue that full financial integration should not be the goal as it does not appear to lead to greater stability by spreading the risk.[29] Regardless, we are integrated. Dialogue about how fully that should take place and resulting policy remains dominated by developed economics and does not include Africa in a meaningful way.

Currently, Africa is underrepresented in the global economic policy making forums. African economies are a growing contributor to global domestic product and still suffer recessions and financial set-backs resulting from foreign economic activity. African economies host stock exchanges,^{^[30]}bond markets,^{^[31]}as well as commodity and derivative markets^{^[32]}.Many are currently regulated with governance structures that were imposed through standard-setting^{^[33]}and those regulations have very little bearing on transactions on the exchange trading floor or how disputes are resolved.^{^[34]} This essay argues that until there is significant representation of African emerging markets in global economic dialogue, with organizations like the IOSCO, growth in those economies will remain elusive and donor dependent.

[1]The Honorable Paul Martin, Minister of Finance of Canada, first chair of the newly formed G20. Germain, Randall (2001) ‘Global Financial Governance and the Problem of Inclusion’, Global Governance, 7: 412, 411–26

[2]Africa is used for convenience to refer to the over 25 equity, commodity and bond markets on the continent.

[3] http://www.un.org/sustainabledevelopment/poverty/ ; see also Regional Economic Outlook Sub-Saharan Africa April 2015

[4]Wall street journal “US Stock Market can’t sidestep emerging markets trouble this time around: Recent troubles in developing economies could pack more punch for US investors. 10/14/15.

[5]Germain, Randall (2001) ‘Global Financial Governance and the Problem of Inclusion’,

Global Governance, 7: 411–26. (Arguing that technical issues such as transparency, moral hazard and prudential regulation alone would not be enough to reform the global financial architecture after the Asian financial crisis. It was the inclusion of emerging market economies for the very first time in the Financial Stability Forum and the G-20 that would increase the legitimacy of the global financial architecture and that without this political component the technical reform would not be effective.)

[6] World Economic report, International Monetary Fund. 2015. World Economic Outlook:

Adjusting to Lower Commodity Prices. Washington (October), 16.

[7]The author has visited and interviewed brokers and CEOS of stock exchanges including the Zimbabwe Stock Exchange, Malawi Stock Exchange, Uganda Securities Exchange, Dar es salaam exchange (now the TSE) and the Lusaka Stock Exchange.

[8]June McLaughlin, “Towards a Contextualized Appraisal of Securities Regulation,” in The Political Economy of Development and Underdevelopment in Africa, edited by Toyin Falola and Jessica Achberger (New York: Routledge 2013): 121.

[9] E. Prasad, et al., “Effects of Financial Globalization on Developing Countries; Some Empirical Evidence,” IMF Occasional Paper No. 220, p. 1 (Washington DC: IMF, 2003)

[10] Layna Mosley, Attempting global standards: national governments, international finance, and the IMF's data regime, Review of International Political Economy 10:2 May 2003: 331, 332

[11] See, International Association of Oil and Gas Producers http://www.iogp.org/international-standards, Global Healthcare Data Standards http://www.ghxeurope.com/global-standards,

[12] Mosley, supra note 6 at 335. (Discussing the political economy of international financial standards and the interplay of government and private actors in their effectiveness and acceptance). This is certainly true with international securities regulation.

[13] Id.

[14]Many world stock exchanges are demutualized and trade as private entities on an stock exhange. They are regulated at the federal or national level; some self-regulate. Broker dealers and brokers are also regulated in the U.S. by the Securities and Exchange Commission but also by the Financial Industry Regulatory Authority which regulates its members; brokers and broker dealers.

[15] Id at 336-37. (Describing the effectiveness of standards

[16]G7 consisted of finance ministers and central bank governors from Canada, France, Germany, Italy, Japan, the United Kingdom and the United States.

[17] See, Mark Beeson and Stephen Bell, The G-20 and International Economic Governance: Hegemony, Collectivism, or Both?, Global Governance 15 (2009) 67-86. The only African economy included in the G20 was South Africa primarily due to the insistence of the Honorable Paul Martin, first chair of the new G20. See, G20 Governance for a Globalized World, .John J. Kirton, Ashgate, (2013).

[18]Germain, supra note 4 at 418.

[19] Martin Khor, Globalization and the South: Some critical issues, United Nations Conference on Trade and Development (UNCTAD), Discussion paper, April 2000, (describing the rise of Bretton Woods institutions such as the International Monetary Fund (IMF) and multinational corporations setting a global agenda focused on commerce and the diminishment of United Nations focus on principals of partnership and fulfilment of human needs).

[20]McLaughlin, supra note, at 107. (African nations not members of the G20 submitted a paper giving an African perspective. No new memberships were extended.)

[21] See generally, Rhys Bollen, The International Financial System and Future Global Regulation, 23 J. Int’L Banking L. 458 (2008).

[22]June McLaughlin, “Taking Responsibility—Securities Regulation Reform and the Global Financial Crisis: The United States, United Kingdom, and East Africa,” Transnational Law and & Cotemporary Problems, Vol.19, (2008):128.

[23] http://www.iosco.org/annual_reports/2013/AMERCReport1.htmlA South African was voted Vice-Chair of the Growth and Emerging Markets Committee (GEM) after the African Middle Eastern Regional Committee pressed for more representation on the IOSCO Board. From 2010-2012 the Chair of that committee was from Turkey, 2008-2009 Chile, 2007 Jordan, 2006 India, 2004-2005 Turkey.

[24]Director Gerneral Arunma Oteh. http://www.iosco.org/annual_reports/2013/AMERCReport1.html

[25] IOSCO Annual Report of the Growth and Emerging Markets Committee. https://www.iosco.org/annual_reports/2014/GEMCChairReport1.html.

[26] http://www.financialstabilityboard.org/[incomplete documentation]

[27] https://www.iosco.org/annual_reports/2014/generalInformation1.html

[28]Handbook of Safeguarding Global Financial Stability: Political, Social, Cultural and Economic Theories and Models. Editor-in-Chief, Gerard Caprio, Chapter 46 “D.W. Arner, “Organizations of International Cooperation in Standard-setting and Regualtion”, (contrary to the author’s statement IOSCO does not have wide spread membership)

[29] Joseph E. Stiglitz Capital Flows, Contagion, and Regulatory Responses †

Risk and Global Economic Architecture: Why Full Financial

Integration May Be Undesirable American Economic Review: Papers & Proceedings 100 (May 2010): 388–392

http://www.aeaweb.org/articles.php?doi=10.1257/aer.100.2.388

[30] http://www.african-exchanges.org/members/There are twenty-three stock exchange members of the African Stock Exchange Association

[31]24 local currency bond markets in sub-Saharan Africa, See IMF Working Paper, Bond Markets in Africa, Yibin Mu, Peter Phelps, Janet Stotsky. , https://www.imf.org/external/pubs/ft/wp/2013/wp1312.pdf

[32]17 commodity and derivative exchanges collectively http://www.afdb.org/fileadmin/uploads/afdb/Documents/Publications/Guidebook_on_African_Commodity_and_Derivatives_Exchanges.pdf

[33]McLaughlin, “Taking Responsibility,” p. 120

[34] I have visited the Zimbabwe Stock Exchange, the Malawi Stock Exchange, the Uganda Securities Exchange, the Dar es salaam exchange (now the TSE) and the Lusaka Stock Exchange.

New book about Harare- 125 yr anniversary

2015-10-21T19:07:00.001-07:00

Harare-Urban Evolution

Happy Birthday, Harare !! You look so good after so much time.
Please check out my old friend's book on Harare. (see link above)

Let me know if you need a copy and I will try to arrange. It will cost you because it is heavy!!

This is me in Harare. Not 125 yrs ago, but it feels like it. 2008 or 2009.

Dr. Dambisa Moyo at ASEA 2014 (hopefully)

2014-09-28T13:28:00.001-07:00

Dambisa Moyo is scheduled to speak at the 2014 African Stock Exchange Association meeting in Kenya. This annual conference brings together stock exchange members of the Association to meet, discuss initiatives, sign memorandum of understanding to collaborate and integrate and to enjoy the culture of the nation where it is held. These meetings can be very political and occasionally without much substance so it an improvement to have a thinker of Dr. Moyo’s caliber attend. I am so sorry to miss going this year! I am no afraid of EBOLA-although I am quite sure attendance will be thin due to that, unfortunately. It is too close to Thanksgiving for me to make the trip.

Dr. Moyo’s book Dead Aid provided a road map for economic growth that did not involve dependence on aid. In that book, she described the Chinese as a friend of Africa; that friendship creating fear in the “Western liberal consensus ”.

More recently, she wrote an article in the Wall Street Journal describing the “Chinese Model” of state centered growth as unworkable for poorer countries seeking long-term growth. These statements may not be inherently inconsistent but underscore the dynamics at play in the region.

In 2009 China was a friend but by 2014 we should not be emulating them for a long-term solution to poverty. I like the refining of her advice but I am quite sure she is invited ASEA this year for her belief in a “Western liberal consensus who believe (often in the most paternalistic way) it is their responsibility to look after Africa. ”

Promoting development of the capital markets in Africa does not make you a neo-colonialist

2014-09-27T21:39:00.002-07:00

Draft of a new essay

“…the grammar of colonialism is in the genetic code of the development project. How could it be otherwise?”[i]

Many stock exchanges in sub-Saharan Africa were established as part of the Structural adjustment programs of the International Financial Organizations or the “development project”.[ii] Developing world countries, in need of loans, followed the required conditions of receiving those loans and liberalized their financial markets and opened capital accounts.[iii] Since then, the International Monetary Fund (IMF) has acknowledged the risks of capital markets liberalization.[iv]In that paper mentioning the risks, the IMF also defines financial globalization as the increased global linkages through cross-border capital flows which surged in the last three decades.[v] Financial globalization is different from financial integration[vi], but also from globalization more generally. To be sure, the West did not invent globalization, it has been around for thousands of years[vii] with scientific, religious and financial concepts spreading from India to China, from the East to the West. Modern globalization, financial, technological, informational and other, is multi-disciplinary has generally been welfare enhancing.[viii] It has eluded some groups, specifically some in sub-Saharan Africa.[ix] To understand why, we must be multi-disciplinary looking for solutions in law, political policy, society and economics and not be imprisoned by any of our past sins or mistakes. We must embrace the difference this challenge presents for us and the future of that region of Africa and work toward change. It is not nearly as simple as saying more infrastructure and better governance and it is time to move past how these exchanges came to be and see what and where they are now.

Africa, the continent, has lots of stock exchanges. They are all regulated with laws, of course, and some with laws that were required for structural adjustment. Most of those laws were transplanted[x]and bear very little relation to what actually gets accomplished on the trading floor or how disputes are resolved.[xi] Many exchanges are small and everyone knows each other. Brokers are formal and polite while business is transacted. They have a communal lunch at the Uganda Securities Exchange where the staff have Master’s degrees from Universities all over the world. Their business is relational-they have a relationship with the other brokers, their boss, the firm they work for, and their customers. This is particularly and specifically in the regions where economic globalization has not yet created wealth. Is that any different than how things used to get done in the kinder, gentler days of Wall Street, before high frequency trading? The legal and economic literature has not yet been able to incorporate that context when arguing about how best to achieve growth in these capital markets.[xii] This does not need to be the work of the IMF or the World Bank or any member of the development project determined to perpetuate itself. This can be just us thinking our big thoughts about Africa and also maybe we can do it just because we love capital markets wherever they are.

A capital market that functions means a company does not need to go to a bank for a loan, it can access individual investors for funding by equity or debt. It can create choice for small to medium enterprises. A bank will also not make risky investments but that happens all the time in the capital markets. That’s what makes it exciting! There is growth in Africa to sustain the capital markets. Africa has experienced exceptional growth over the last decade, as well as the persistence of extreme poverty.[xiii] The US-Africa Leaders’ Summit 2014 created dialogue that will in an ideal world help to remedy misperceptions about the frontier markets in Africa and allow the discovery of opportunities.

The responsibility to care about Africa and Africans rests with African leaders, without a doubt. But our perceptions of Africa must change as well. Our media exclusively focus on the negative. The discourse on capital markets must accept was has gone before and not immobilize us in the future. Stock exchanges in Africa are very nifty. I find it too dismissive to tell those countries in Africa who work hard to develop their exchanges that it is all simply part of a plot of the Global North.[xiv]The exchanges are symbolic of entrance into a global community that wants to see them prosper and p[xv]rovide an excellent rate of return.

[i]Alternative Development of Alternatives to Development I, II, III, IV, blog posts by Tayyab Mahmud, www.concurringopinions.com, posted on 25 June 2012, 26 June 2012, 30 June 2012, 10 July 2012, following the Rio + 20 Conference on Sustainable Development.

[ii]McLaughlin, “Towards a Contextualized Appraisal of Securities Regulation”, found in The Political Economy of Development and Underdevelopment in Africa, Ed Toyin Falola and Jessica Achberger, Routledge (2013) p 118

[iii]Jose Antonio Ocampo, Shari Spiegel, and Joseph Stiglitz, “Capital Markets Liberalization and Development” in edited volume Capital Market Liberalization and Development, Edited by Ocampo and Stiglitz OXFORD 2008. P. 1

[iv]Id at 2, referring to a 2003 paper by Prasad, E. Rogoff, K., Wei, S.J. and Kose, M.A. (2003) “Effects of Financial Globalization on Developing Countries; Some Empirical Evidence.” IMF Occasional Paper No. 220, Washington DC IMF.

[v]Prasad, E. Rogoff, K., Wei, S.J. and Kose, M.A. (2003) “Effects of Financial Globalization on Developing Countries; Some Empirical Evidence.” IMF Occasional Paper No. 220, Washington DC IMF. Pg 1

[vii]Dilip K. Das, Conceptual Globalism and Globalization: An initiation,

2011 Working paper, Center for the Study of Globalisation and Regionalisation, University of Warwick

[viii]Id at 29 citing examples of Eastern economies that suffered in the short-term but gained prosperity in the long-term.

[ix]Id at 17

[x]McLaughlin, Taking Responsibility—Securities Regulation Reform and the Global Financial Crisis: The United States, United Kingdom, and East Africa, 102 Transnational Law and & Cotemporary Problems [Vol.19, 2008] p120

[xii] McLaughlin, “Towards a Contextualized Appraisal of Securities Regulation”, found in The Political Economy of Development and Underdevelopment in Africa, Ed Toyin Falola and Jessica Achberger, Routledge (2013) p121

[xiii]UN Economic Commission for Africa, Dynamic Industrial Policy in Africa, 2014 p 1.

[xiv]“Development is not just a theory about economic development and elimination of poverty, but also an ideological and institutional device to consolidate the domination of the Global North over the Global South.” Alternative Development of Alternatives to Development I, II, III, IV, blog posts by Tayyab Mahmud, www.concurringopinions.com, posted on 25 June 2012, 26 June 2012, 30 June 2012, 10 July 2012, following the Rio + 20 Conference on Sustainable Development.

[xv]

John Lennon was right about Women

2014-09-25T22:37:00.001-07:00

Africa, word up, do not concern yourself with women issues. I guess they are not important at all.
The "scholars" of Constitutional Law here in the USA agree with that they are not. Or else they are simply dedicated to self-promotion and that would be a terrible waste of trees.

A Dean of an American LAW SCHOOL does not consider gender important. Africa it is ok to continue with the status quo. Women truly are the the N word of the WORLD.

This new book on how the Supreme Court of the US has failed the minority does not worry itself with a woman's right to terminate a pregnancy. Regardless of your religious view, you might have a view about whether a judge should tell a woman or a couple what they can do about a pregnancy. How about discussing a Father's rights? How about the rights of the unborn child?

crickets

How can an intellectually honest American lawyer not include this topic in a BOOK that discusses the wrongness of SCOTUS? It declared what women can do and started the mess.

Did the US Supreme Court get everything right including this but not other things??
Please, law professor, explain it to me.

Please let me know when the author is checking in for his pap smear.
Tackle the tough stuff too, or nothing, my friend.
The World is watching.

Intellectual Property infringement as techno-civil disobedience from Harare to Tijuana

2014-09-07T18:07:00.002-07:00

Across the continents, intellectual property laws are broken. You can travel most anywhere with a USB and acquire pirated material from movies to music.

Original creations, trademarks, and patents are protected by laws for the benefit of the creator. This makes sense to me as a lawyer and a rule-loving individual. Tell me what the rule is and I will joyfully follow it. In spite of my rule-based disability, I tried to understand why my students were so cavalier about infringing these creative rights. When asked if they were a shoplifter, my students responded slowly with some shame. Asked if they pirated movies or music the hands shot up with an enthusiasm I wished they applied to reading the textbook. I asked them why they stole from others and their answers, rather justifications, were complex. They know they are breaking the law, sort-of. They infringe for many reasons and I think one of them is a response to economic inequality and I would go so far as to say an expression of techno-civil disobedience.

Some copyright owners can afford to track down infringers and punish them. Disney goes VERY FAR to protect it's mouse, all day long. Other artists and creators do not have those resources. For the artists who have less resources, anecdotal data collected in my business law classes over the past 3 years suggests, individuals try not to infringe. When its a major movie or very wealthy artist, students infringe with impunity. They are Robin Hood, sharing with others or charging a minimal fee.

It is too simplistic to explain away this behavior with generalizations about youth or lack of conscience. I find that their descriptions of how and when they infringe displays a somewhat complex calculation after reflecting on who is actually hurt by their non-compliance. Of course, there exists in this group the everyday, unremarkable criminal intent to deprive someone else of income or property that is theirs. However, I have found that to be the minority.

The majority are looking at the artists involved and making a decision to infringe based on the ability to sustain the loss of revenue. New artists who put music out for free or whose concerts they attend are given the greatest deference. The least concern is for the Motion Picture Association of America, or other high earners. (BEYONCE) My students constantly surprise me with the things they feel strongly about!

I always wonder why they did not riot or "Occupy" the college during the credit crisis-sub-prime meltdown. They do care about good behavior and what is right. They care quite a bit actually. Their demonstration in the classroom of a real value for treating people fairly was also tainted by a jaded view of embedded unfairness in their world. Many cannot afford more than just Community College. Many students are working full-time and taking care of family or without family and a support system. They think the NSA already reads their email. They believe things are rigged against the less powerful. They are not idealistic. They are not idealistic in a manner that can be easily understood.

They believe in a free Internet and they will always support environmental issues. I laugh out loud in class when they whole-heatedly agree on environmental things but are not sure at all about hiring a felon as an employee. They really struggle with giving people second chances but they care very much about electronic rights and carbon emissions. With some exceptions--it is a car culture and they want to allow some carbon emissions for certain cars, apparently.

It is not easy to understand youth. I gave birth to one and he is 21, but that does not create understanding. Talking to them, spending time with them, just like with AFRICANS, creates some beginning appreciation of the differences---and from that comes understanding--hopefully. This post is the beginning of my writing on something that I have been thinking and discussing with students in classrooms for several years. I believe it is valuable to contemplate.

Economies in Africa doing well-will this attract investment?

2014-08-30T12:21:00.003-07:00

African Capital Market News relays that Nigeria has surpassed South Africa as the continents fastest growing economy. That report also links to a great website all about investing on African Exchanges complete with who to email, customer agreements, and brokerage fees called Investing in Africa. Investing in Africa also has an informative article about the Nairobi Stock Exchange IPO.

All of this exchange activity raises one question in my mind, once there is an increase in investment related disputes--broker/customer, broker/broker-- how will those disputes be resolved. More certainty in this area will create an environment that even more investors find comfortable for entry and exit.

Truth and the Human Spirit in Africa

2014-08-24T16:22:00.003-07:00

Some very interesting articles online about Africa these days--surprisingly supportive.

The first is an article in on Truth Dig by Joe Conason about Ebola, minuscule US foreign aid (despite perceptions otherwise) and scientific research. It argues for more understanding by Americans of how little we give to the developing world and how a increased level of support for health care and research in the developing world is the right thing for everyone.

The second is an inspirational article in the New York Times about nurses and workers in Sierra Leone who have stayed to fight and support the efforts to control the Ebola outbreak. The article is a testament to the human spirit and a people dedicated to the rebuilding of a nation despite so much hardship and turmoil. Please take the time to read it.

Uzo Aduba

2014-08-06T09:08:00.003-07:00

Last night was the African Leaders Summit gala at the White House.
According to USA Today, very few celebrities showed up.

Uzo Aduba was there!!! She is an amazing actress and most recently played Crazy Eyes in "Orange is the new Black"

Today the Summit wraps things up.
I found a place for you to buy your commemorative Summit T-Shirt!

US Africa Business Forum

2014-08-05T10:26:00.001-07:00

The US Africa Business Forum has a LIVE STREAM of what is going today. This is a collaboration between Bloomberg Philanthropies and the US Department of Commerce.

Out of fairness, I must add that they are headquartered in LA. (smiley face) I believe this is more for proximity to the beach but I cannot say for sure. Here is their facebook page.

Great charts and data sources on Africa

2014-08-05T10:12:00.003-07:00

The Washington Post has some great charts and breakdowns of the African Leaders Summit in D.C. They discuss who was invited and not invited and the political identification of the countries--democratic, autocratic.

What I would love to see, but have not found yet, is a similar set of maps and charts that talks about GDP, Market Capitalization, what do the capital markets look like, does a commodities market exist, real economic data for each of the attendee nations. That data is certainly available through the IMF, World Bank and World Federation of Exchanges. I would like to see it also in the Washington Post or better yet the LA Times!! LA, I love you, but you spend so much time looking at your navel. You really do.

People in the states very much want to talk about Ebola right now. I do not think that is bad for Africa. In a perverse way this has focused Americans, once again, on how connected we are--only a plane ride away.

The news reports and information regarding the Summit has actually been really good. I am finding new blogs and information sources. Rock on, Oooooobama! You go be a politician and create a legacy for yourself and the Democratic Party. Hopefully, there will be some collateral economic benefit for Africa from this political performance.

Camp Amalinda, Zimbabwe June 2014

2014-08-03T21:17:00.003-07:00

http://www.campamalinda.com/

Investing in Africa

2014-08-03T20:19:00.003-07:00

Boring article but another cool graphic, this time by Bloomberg, on investment in Africa.

I was in Zambia and Zimbabwe in June. It was fun to take pictures of the construction projects we drove past. Lots of local workers and one to three Chinese guys. China is doing a whole bunch of building in Africa. The Hydro-electric plant at Lake Kariba was amazing. It is all good. I just am dubious about the longevity and motivation of the whole thing.

Unfortunately or fortunately, the US has a unique relationship to Africa. Even to be distinguished from the Brits.I have so much hope that the Oooooobama administration will see the potential for partnership!!

Frontier Markets 2014

2014-08-03T20:13:00.003-07:00

Very cool graphic in the Wall Street Journal of World Frontier markets.

Enjoy!

African Leaders Summit Washington D.C

2014-08-02T18:06:00.000-07:00

It is time to focus on Africa.
Time for both President Obama and myself.

Please read this great OP-ED article by Tony Elumelu in the Wall Street Journal, HERE posted on CP-Africa.

Unfortunately, the press about Ebola is very sensational. Many American will focus on that in the upcoming week rather than the Leaders Summit. Nothing to be done about that other than to keep banging the drum.

As Tony Elumelu says " Africa is ready for business and open for investment"

Central African Stock Exchange Handbook 2014

2014-06-22T21:16:00.001-07:00

The CASE Handbook 2014 is available. It is an amazing compilation of publicly traded company profiles in Zambia, Zimbabwe, Malawi, Botswana and Zimbabwe.

I recently visited Zambia. The development (and traffic) is spectacular!!

Please check out the handbook if you have any interest in these markets!!

US Securities Exchange Commission investigates Congress

2014-06-22T20:48:00.002-07:00

The SEC is investigating leaks from a US Congressional Committee that links a Congressional aide to an insider trading case. As a country we invent new ways to evade securities laws, and create awesome ways to catch the bad guys !!

Inequality and the Capital Markets in sub-Saharan Africa

2014-04-02T17:02:00.000-07:00

There are many linkages between international securities organizations and emerging capital markets in East Africa: how financial globalization encourages financial integration in the global economy: which institutions influence that integration in the African capital markets: and what kinds of inequalities might be understood or unearthed in the context of that current arrangement.

Securities related international organizations such as International Organization of Securities Organizations, the World Federation of Exchanges, promulgate best practices in the securities industry regulation for world stock exchanges and are part of an interrelated network of international organizations that influence stock exchange activity and regulation including: the World Bank, the International Monetary Fund and the Organization for Economic and Co-operative Development. Similar to the establishment of Stock Exchanges in economies with no financial infrastructure or investment culture to support them, these best practices are implemented wholesale by East African Exchanges with the promise of membership in a global economic community. Functionally, however, the best practices do not take into account local capacity or conditions.

As Professor Andrew Hurrell stated, “Institutions reflect, but also actively shape, communities.” This paper describes the international securities organizations and considers how they influence regulation in emerging markets and is a preliminary attempt to understand that role in terms of inequality.

This year the International Organization of Securities Commissions published its first Securities Market Risk Outlook[1] with a narrow focus on securities markets and the potential systemic risks currently existing or could develop, threatening the financial system as a whole. International organizations promulgate best practices in the securities industry regulation for world stock exchanges. Frontier, emerging, and developing exchanges comply with these recommendations wholesale frequently without the resources to customize them.[2]Currently, the developed exchanges and international organizations setting those best practices are dominated by the West. African financial markets have lagged behind others for most of the twentieth century.[3]

The global financial crisis underscored the need for the developed world to review its existing legal and financial frameworks and changes were enacted: Dodd-Frank, establishment of the Financial Stability Board to name a few. However, those same organizations still serve as gatekeepers to entrance in the global financial markets. The world realized the fragility of the governance of its banking system and the global connectivity we already existed in. The rules and regulations that governed our capital flows were connected to our mortgages and our jobs: law, society and economy in complete overlap. The reforms addressed multiple layers of that overlap. (FSB, IOSCO) The powerful nations who caused the crisis struggled, and continue to struggle, with their legal response to it. And yet, that response will have ramifications for developing markets who may or may not have had the same risk factors leading to the crisis, but may need to adopt reforms, for example new rules for derivatives[4], as a new standard for best practices. Those regulations reflect a political and social reality that does not yet exist for many developing exchanges and for most of the markets considered in this Article. Securities regulation for emerging markets is best understood as the confluenceof sociological, economic, political and legal discussion. Markets involve investors, companies, brokers,

The very existence of markets in developing economies raises questions about development, political will of the society and the rules that will regulate those markets presumably creating investor confidence and ultimately attracting outside investors to further support growth and development. The overlap of disciplines are belied by the literature. Capital markets in the developing world and the regulation of them are frequently written about from an economic or wealth maximizing perspective.[5]This literature focuses on the markets as vehicles for growth or economic development as well as quantifying that growth. Indeed, much of the economic literature is from the World Bank whose economic publications, researched by Economists from the United States and Europe, have served to promote and drive the debate over economic policies.[6] How do concepts of law fit into this discussion and what role does law play in this arena? The rules and regulations, promulgated by international organizations, are surely more than just orders or commands with respect to markets.[7]

I will be writing about these ideas and thoughts in the next few weeks and will share them here.

[1] IOSCO Securities Market Risk Outlook 2013-14 available at http://www.iosco.org/library/pubdocs/pdf/IOSCOPD426.pdf(last accessed..........) The purpose of the report is to “assist national regulators in implementing IOSCO’s two new principles on identifying,assessing and mitigating systemic risk (Principle 6), and on reviewing the regulatory perimeter (Principle 7) Id page 6.

[2] Cite my paper

[3]Financial Regulation in Africa: An Assessment of Financial Integration Arrangements in African Emerging and Frontier Markets, Iwa Salami, Ashgate 2012. Foreward by Rosa Lastra

[4] IOSCO new principles

[5] Pistor and the La Plante

[6]Sebastian Edwards, as well as The Global Diffusion of Markets and Democracy, Eds Beth Simmons, Frank Dobbin, and Geoffrey Garrett, Chapter Introduction: the diffusion of liberalization, p 16.

[7] H.L.A. Hart, The Concept of Law, Claredon, 2^nd edition, 1997, p.13.