法律翻译｜《哥大商法评论》2021年第3期目录+摘要

For more than 200 years, the market for U.S. Treasury securities has propelled U.S. economic success. More recently, it has been described as the world’s most important financial market because Treasury securities promote liquidity, price discovery, and economic stability across the globe. Despite its vital role at home and abroad, the Treasury market lacks certain structural protections that are common in other advanced financial markets. Bringing the Treasury market into the modern age is necessary because it is not immune to the risks that confront other financial markets. This was underscored in early 2020, when the coronavirus (COVID-19) pandemic roiled the Treasury market, producing significant trading disruptions and liquidity constraints.

200多年来，美国国债市场推动了美国经济的成功。晚近以来，它被描述为世界上最重要的金融市场，因为国债促进了全球的流动性、价格锚定和经济稳定。尽管美国国债市场在国内外发挥着至关重要的作用，但它缺乏一些在其他先进金融市场常见的结构性保护。推动美国国债市场现代化是必要的，因为它并不能免受其他金融市场面临的风险的影响。这一点在2020年初得到了凸显，当时冠状病毒（COVID-19）大流行扰乱了美国国债市场，造成了严重的交易中断和流动性限制。

To help reduce the risk of future Treasury market instability, this Article recommends modest enhancements that have proven successful in similar markets. Robust public reporting of Treasury securities trades, improved oversight of trading venues, safeguards that promote operational resiliency, and expanded central clearing will promote Treasury market strength and resiliency well into the future.

为了帮助降低未来美国国债市场不稳定性风险，本文建议采用已在类似市场中得到证明的适度改进举措。强有力的国债交易公开报告、对交易所监管措施的改进、促进运营弹性的保障措施，以及扩大的中央清算都将在未来促进美国国债市场的力量和韧性。

The Securities Act of 1933 is tied to transactions in securities, rather than the risk of those securities, an approach that reflects the risk management of the times. Managing risk through diversification did not occur until twenty years later, and a further twenty years passed before new instruments were created to facilitate the transfer of discrete portions of financial risk. For much of the capital markets, this shift resulted in a separation between the risk associated with individual securities and the securities themselves. The idiosyncratic risk of individual securities now matters less than its impact on a portfolio’s total risk.

In response, SEC disclosure requirements increasingly have facilitated cross-company comparisons and portfolio-level investment decisions. Nevertheless, the growing separation between risk and the instruments evidencing that risk, and the ability today to manage and transfer risk by itself, prompts a question: Should we begin reconsidering the Securities Act’s approach to regulation, moving from requirements tied to transactions in securities towards requirements that reflect the management and transfer of risk?

There is certainly merit to doing so, but we may be limited by the practical difficulty of tracing risk in today’s capital markets. For now, regulation’s practical reach may fall short of contemporary investment and risk management strategies. While regulatory responses are possible, there is likely to continue to be a tension between the requirements of the Securities Act and the risk-based approach to investing taken by institutions whose investments comprise most of the transactions subject to the Securities Act.

https://journals.library.columbia.edu/index.php/CBLR/article/view/9114/4664

This Note discusses the impact of conflicts of interest on the proxy advisory firm industry, with a particular focus on conflicts plaguing Institutional Shareholder Services, the dominant proxy advisory firm. The increased proportion of shares held by institutional investors, strong reliance on voting recommendations by certain investment advisors and continuing dominance of Institutional Shareholder Services have culminated in Institutional Shareholder Services’ substantial influence in proxy voting. The lack of sufficient regulatory oversight has precipitated considerable risk of proxy voting that serves the best interest of proxy advisory firms rather than that of shareholders. Recent rules and guidance issued by the Securities and Exchange Commission have not adequately addressed these concerns. Several possible reforms may help this situation, including eliminating robo-voting, separating voting advice and corporate governance consulting services and mandating engagement in voting research beyond that provided by proxy advisory firms. Pursuing these avenues of reform could help restore the integrity of voting recommendations and ensure that proxy advisory firms are used in the way they were initially intended: to reduce information costs and help investment advisors vote shares in their clients’ best interests.

https://journals.library.columbia.edu/index.php/CBLR/article/view/9115/4665

Under the Uniform Commercial Code (UCC), “every aspect” of a foreclosure sale must be commercially reasonable. The traditional commercial reasonableness standard was tested during the first year of the COVID-19 pandemic, as the unprecedented circumstances imposed by state restrictions prompted increased judicial scrutiny of UCC foreclosure sales. This occurred most prominently in the context of commercial property mezzanine loan foreclosures. A mezzanine loan is a property loan secured by a pledge of equity interests in the property-owning entity rather than a security interest in the property itself. As state mortgage foreclosure moratoriums restricted lenders’ abilities to foreclose on commercial property, mezzanine lenders initiated UCC foreclosures to circumvent this barrier and take control of their collateral.

根据美国统一商法典（UCC），止赎销售的“每个方面”都必须达到商业合理性标准。由于国家限制举措导致的史无前例的情况促长了针对UCC止赎销售的司法审查，传统商业合理性标准在新冠病毒大流行的第一年受到了考验，这一情况在商业地产夹层贷款止赎案件中最为突出。夹层贷款是一种财产贷款，由拥有财产的实体的股权而不是财产本身进行担保。由于国家抵押贷款止赎的暂停限制了贷方对商业地产的止赎能力，夹层贷方发起了UCC止赎，以规避这一障碍并控制其抵押物。

This Note argues that courts adopted a more probing and holistic analytical approach to commercial reasonableness analyses during the first year of the pandemic. This approach more closely analyzed the procedures employed by foreclosing lenders and contextualized fair price considerations within wider market and societal concerns. This Note then proposes ways for secured creditors to protect their foreclosure sales during future periods of market uncertainty. Although secured creditors cannot fully insulate their foreclosure sales from fair price challenges in a market downturn, they should employ additional procedural safeguards to deflect commercial reasonableness challenges aimed at the alleged procedural irregularities of such sales.

本说明认为，法院在新冠病毒大流行的第一年对商业合理性分析采取了更具探索性和整体性的分析方法。这种方法更仔细地分析了止赎贷款人采用的程序，并将公平价格的考虑纳入更广泛的市场和社会关切之中。本说明随后提出了担保债权人在未来市场不确定时期保护其止赎销售的方法。尽管担保债权人不能使其止赎销售在市场低迷时完全免受公平价格挑战的影响，他们可以采用额外的程序性保障措施，以转移针对此类销售据称的程序违规行为的商业合理性质疑。