About myself

After about fourteen years of financial services law and about one friendly accusation from another lawyer that I missed law school, I had the good fortune to join the team of Prof. Michael Waibel in the Department of European, International and Comparative Law at the University of Vienna in 2021. I have found research and teaching rewarding and have been very privileged to join a fascinating group of scholars as an Ars Iuris uni:doc fellow since 2023.

About my interests

As someone who once studied history, I am fascinated by the parallel lives of law and reality. While working many years ago at the Attorney General’s Office in Boston, I read a newsletter summary of regulatory developments and noticed that the US Securities and Exchange Commission had announced, in an obscure technical fashion, that it was going to ignore financial reform laws recently enacted by Congress because banks and credit rating agencies did not like them. I spoke to some people at the SEC, who asked me suspiciously how I had found out. I was able to convince my boss’ boss’ boss, the then-Attorney General of Massachusetts, to write the SEC and request an explanation, which was duly provided and not particularly enlightening. I contacted a reformist professor in financial law, who was supportive and suggested that I take his approach and testify before Congress, only I had not been invited to testify before Congress. Last and least, I published on the topic.

None of it mattered, just as—I console myself—controversial financial reform legislation in the United States didn’t matter, because to the extent it was difficult or unpopular the regulators did not enforce the law and made pronouncements to specialist practitioners that they would not enforce the law. Chastened, I moved to continental Europe, where, I like to think, law is taken more seriously.

A memorable and thought-provoking, if legally and historically erroneous, discussion appears in Oliver Wendell Holmes’ 1897 article “The Path of the Law”:

No doubt simple and extreme cases can be put of imaginable laws which the statute-making power would not dare to enact, even in the absence of written constitutional prohibitions, because the community would rise in rebellion and fight; and this gives some plausibility to the proposition that the law, if not a part of morality, is limited by it. But this limit of power is not coextensive with any system of morals. For the most part it falls far within the lines of any such system, and in some cases may extend beyond them, for reasons drawn from the habits of a particular people at a particular time. I once heard the late Professor Agassiz say that a German population would rise if you added two cents to the price of a glass of beer. A statute in such a case would be empty words, not because it was wrong, but because it could not be enforced.

In fact, numerous statutes restricting the sale and increasing the price of beer have been enacted and enforced in places ranging from Chicago in 1855 to Frankfurt in 1873. So much for laws that “could not be enforced.” The law can be enforced, then changed officially (reversal of beer price increases following beer riots) or enforced selectively (SEC confirming its intention not to enforce certain provisions following market disruptions). The law can be partly or wholly enforced in certain times and not others, while always remaining entirely the law. Holmes was wrong to imagine a “limit of power” of the law. It is more accurate to say that with every law and legal agreement comes a pattern of practice. This is part of what interests me in my own work.

The dissertation topic

My dissertation presents a legal analysis of currency swaps between central banks. Very generally, these agreements allow a central bank in one country to exchange its own currency for another central bank’s currency, subject to an obligation to reverse the transaction after a specified period, such as 90 days, and for a fee, such as interest.

Central bank currency swaps have played a significant role in global finance for over a century and have increased dramatically in prominence since the 2007 global financial crisis, when the Federal Reserve in the United States provided nearly $600 billion via swap lines to the European Central Bank, allowing the ECB to provide emergency dollar liquidity to banks throughout the EU and stabilize the global financial system. The Federal Reserve’s swap agreements with the ECB and other large central banks, such as the Bank of England, are striking for their omission of a choice of law clause and dispute resolution provisions. They are agreements between states, state organs and international organisations. There is evidence that these agreements are intended to be governed by international law and are intended to be binding. There are good arguments that they constitute treaties under the Vienna Convention on the Law of Treaties. These are among the most economically and politically important treaties in the world, and yet they disregard many formal requirements for treaties and are not registered as treaties as required by the UN Charter.

The legal character of these agreements, apparently both binding but usually too economically and politically critical to permit adjudication, is what my dissertation proposes to examine. The questions presented by central bank currency swaps are interdisciplinary, existing at the interface of international monetary and financial law, the law of treaties, private international law and law and economics.

Quo vadis?

My ambition is that my dissertation can contribute to an ongoing dialogue about international agreements in practice. As geopolitics make their return and diplomacy is increasingly carried out through non-binding agreements, informal agreements not ratified by legislatures and secret agreements, central bank currency swaps are a valuable case study of how states can work together to reach informal yet essential understandings under extreme time pressure.