Obtaining and Enforcing a Security Interest in Local Currency Under Article 9 of the UCC

Marina C. Leary*

Community currency is known by many names including complementary currency, alternative currency, and parallel currency. Community currency operates alongside an official or national currency (e.g., dollars or euros) with the purpose of circulating within a small geographic area to facilitate the sale of goods and services. In other words, community currency refers to a privatized form of currency that is not backed by a government entity. With the increased use of community currency, it has the potential to serve as collateral for a security interest under the Article 9 of the Uniform Commercial Code. Although there are several types of community currency, this article will focus on obtaining and enforcing a security interest in local currency. After analyzing local currency under the UCC in its current form, this comment will offer several suggestions to better handle a security interest in local currency under the UCC.

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Evaluating a Permanent Court Solution for International Investment Disputes

Emily Palombo*

Despite the original objective of investor state dispute settlement (“ISDS”)—to create an unbiased arbitration mechanism to resolve conflicts between states and foreign investors—ISDS tribunals have gained the reputation of being one-sided, nontransparent, and inconsistent in decisions rendered. A major reform proposed to address the criticism of ISDS is the creation of one permanent tribunal, rather than numerous ad hoc tribunals constituted separately for each investment dispute. Discussion of ISDS reform in light of its historical context poses the question: is ISDS really a broken system, or have our global priorities and concerns changed over time? While improvements can be made, the current ISDS system is still faithfully serving its original purpose as a neutral tribunal where disputes can be arbitrated. In contrast, the creation of a permanent investment tribunal may thwart the principles envisioned for ISDS at its inception, most importantly, the balance between the protection of state sovereignty and the recognition of the investor as an autonomous private entity. This comment discusses a permanent court solution to international investment disputes in light of the European Council’s 2018 directive authorizing the European Commission to negotiate, on behalf of the European Union, a convention to establish a permanent body to settle investment disputes called the multilateral investment court (“MIC”). It compares the proposed MIC with the structure of the permanent investment tribunal, known as the Investment Court System, contemplated by the Comprehensive Economic and Trade Agreement. Ultimately, this comment concludes that ISDS tribunals can address many concerns through reform to the existing ad hoc system without requiring permanency, thus continuing to respect the original aims of the ISDS system and to foster international investment.

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Civil Practice and Procedure

Christopher S. Dadak*

This article addresses changes and notable analyses in approximately a year’s worth of Supreme Court of Virginia opinions, passed legislation, and revisions to the Rules of the Supreme Court of Virginia affecting Virginia civil procedure. This article is not meant to be all encompassing, but it does endeavor to capture the highlights of changes or analyses regarding Virginia civil procedure. The opinions discussed throughout this article do not all reflect changes in Virginia jurisprudence on civil procedure. Some address clarifications or reminders from the court on certain issues it has deemed worthy of addressing (and that practitioners continue to raise). The article first addresses opinions of the supreme court, then new legislation enacted during the 2018 General Assembly Session, and finally approved revisions to the Rules of the Supreme Court of Virginia.

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Corporate and Business Law

Christopher L. McLean*

The past two years have produced a number of pieces of legislation from the Virginia General Assembly that serve to bring the set of Virginia business entity statutes up to date with its peers around the country. Part I highlights changes to the Virginia Stock Corporation Act (“VSCA”) and the Virginia Nonstock Corporation Act (“VNSCA”). Part II highlights changes to the Virginia Securities Act (“VSA”) and other statutes affecting Virginia business entities. Part III reviews two significant cases that the Supreme Court of Virginia decided over the past two years with respect to Virginia corporate law. Those decisions provided guidance on the concept of a foreign company “transacting business” in Virginia, the ability of a foreign company to maintain a suit in Virginia without properly obtaining a certificate from the Virginia State Corporation Commission (“Commission”) as a registered foreign company, and the survival of the “futility exception” with respect to derivative suits by members of a limited liability company (“LLC”).

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Family Law

Allison Anna Tait*

Once again this year, the Virginia courts and legislature have been occupied with a range of family law matters—from divorce, to custody, to support. Spousal support, in particular, has been much discussed in legislative chambers, as well as in courtrooms, and significant legislative changes will redesign how divorcing couples draft settlement agreements in the coming years. In other areas, there has been less activity and fewer results. Both the House of Delegates and the Senate of Virginia failed to move out of committee bills that would repeal “the statutory prohibitions on same-sex marriages and civil unions or other arrangements between persons of the same sex purporting to bestow the privileges and obligations of marriage.” Similarly stuck in committee was a bill to repeal the crime of adultery, and one to make “parenting and marriage terminology gender-neutral in the relevant law regarding adoption.”

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Professional Responsibility

James McCauley*

This article briefly describes some recent amendments to the Virginia Rules of Professional Conduct adopted by the Supreme Court of Virginia in 2016 and 2017. The changes affect the lawyer’s duty to protect confidential client information in this digital age, lawyer advertising and solicitation, and candor with a tribunal. The article also discusses two legal ethics opinions adopted by the court addressing a lawyer’s obligations when faced with another lawyer suffering from an impairment.

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Wills, Trusts, and Estates

J. William Grat, Jr.* & Katherine E. Ramsey**

The 2018 Virginia General Assembly enacted legislation to conform the interpretation of wills with trusts, revised the recent trust decanting and augmented estate statutes, and provided a procedure for resolving doctor/patient disputes over appropriate medical care. It also confirmed the creditor protection available for life insurance and annuities, and addressed certain entities’ eligibility for real and personal property tax exemptions, annual disclosures of charitable organizations’ administrative and charitable service expenses, virtual nonstock corporation member meetings, bank directors’ stock holdings, the disposition of unused tax credits at the taxpayer’s death, and fiduciary qualification without surety. The Supreme Court of Virginia handed down eight recent decisions addressing the presumption of undue influence, requirements for estoppel and preclusion, the signature requirement for a proper codicil, trust governing law and interpretation, the fiduciary duties of agents, the jurisdiction of Commissioners of Accounts, and appraisal requirements for state tax credits.

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