Volume 76, Number 4

October 2001

Diaspora Bonds

Anupam Chander

Diasporas–groups who maintain ties to a homeland while living abroad–present a challenge to standard paradigms of international law. The dominant statist model of international law, which limits the reach of a state’s laws to its own geographic boundaries, allows no legal connection between a diaspora and its homeland. The cosmopolitan model of international law, which minimizes the importance of nationality, also discourages such legal ties. Professor Anupam Chander proposes a third paradigm–the diasporan model–which accommodates the dual loyalties and interests of people living in diasporas by allowing them to be governed by the laws of both their homelands and their adopted countries. As an example of host the diasporan model might settle concrete legal problems, Chander discusses Resurgent India Bonds, a mechanism that the Indian government uses to raise capital from the Indian diaspora. He suggests a diasporan solution to the choice-of-law question raised by foreign-issued securities: enforcing forum-selection clauses which keep private litigants out of U.S. courts, while allowing regulators to enforce U.S. law against foreign issuers. This hybrid solution, Chander argues, makes a diasporan compromise: It respects the sovereignty of the adopted country over matters of public concern while allowing the diaspora to choose the law of its homeland to resolve private disputes.