# Transaction location `kaal:entity:transaction-location` **Status.** derived This node is assembled mechanically from the 9 claims that carry the concept tag `transaction-location`. It is a roster of what the corpus says under this term. It is **not** an adjudicated definition: no single statement here has been ruled canonical, and no first-appearance call has been made. Read the claims and judge for yourself. ## Every claim under this term 9 claims across 2 works, 2011 to 2012. **2011** - [1765901-010](https://wulfkaal.github.io/claims/1765901-010) [failure/argued] *(failure mode)* -- The Porsche swap transactions were not the functional equivalent of a transaction on a U.S. securities exchange, but neither were they the functional equivalent of a transaction on a German exchange, contrary to the implication of Judge Baer's opinion. > In the actual Porsche case, however, the swap transactions were not the func- tional equivalent of a transaction on a U.S. securities exchange, even if they also were not the functional equivalent of a transaction on an exchange in Germany. Kaal and Painter, The Aftermath of Morrison v. National Australia Bank and Elliott Associates v. Porsche (2011). SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1765901 - [1765901-011](https://wulfkaal.github.io/claims/1765901-011) [failure/argued] *(failure mode)* -- The economic reality of swap agreements does not justify fixing the location of the transaction in every case solely by reference to the market where the reference security trades, even though Judge Baer was right that the Porsche swaps were not U.S. transactions. > Judge Baer was right that these swap agreements were not transactions in the United States, but the "economic reality" of swap agree- ments does not support fixing a location for the transaction in every case based solely on the market for the reference security. Kaal and Painter, The Aftermath of Morrison v. National Australia Bank and Elliott Associates v. Porsche (2011). SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1765901 - [1765901-012](https://wulfkaal.github.io/claims/1765901-012) [failure/argued] *(failure mode)* -- Morrison provides no clear parameters for classifying privately negotiated transactions as domestic or foreign, because the case involved publicly traded securities and never reached the question. > There are currently no clear parameters for defining the location of privately negotiated transactions as domestic or foreign transactions under Morrison. Morrison did not explore this issue because that case involved securities that were publicly traded — in Australia. Kaal and Painter, The Aftermath of Morrison v. National Australia Bank and Elliott Associates v. Porsche (2011). SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1765901 - [1765901-013](https://wulfkaal.github.io/claims/1765901-013) [failure/argued] *(failure mode)* -- If the presence of a single U.S. party sufficed to locate a privately negotiated derivative transaction in the United States, U.S. parties could sue in U.S. courts regardless of other factors such as where the counterparties were located. > If the presence of one party alone should suffice, U.S. parties to privately negotiated derivative transactions would be able to sue in U.S. courts regardless of other factors, such as where the counterparties were located, Kaal and Painter, The Aftermath of Morrison v. National Australia Bank and Elliott Associates v. Porsche (2011). SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1765901 - [1765901-014](https://wulfkaal.github.io/claims/1765901-014) [failure/argued] *(failure mode)* -- Locating a private transaction by the location of the parties is often unworkable, because the parties are frequently institutions simultaneously present in the United States and abroad, and individual parties are often in transit. > Parties to a private transaction are often institutions having a simultaneous presence in the U.S. and abroad. Individual parties to a private transaction are often in transit. Kaal and Painter, The Aftermath of Morrison v. National Australia Bank and Elliott Associates v. Porsche (2011). SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1765901 - [1765901-015](https://wulfkaal.github.io/claims/1765901-015) [design/argued] -- Given the defects of a party location analysis, courts should de-emphasize where the parties are and instead use a totality of the circumstances approach to determine where a privately negotiated derivative transaction took place. > perhaps de-emphasizing the location of the parties while focusing on the totality of the circumstances could help establish appropriate parameters to determine where a privately negotiated derivative transaction took place. Kaal and Painter, The Aftermath of Morrison v. National Australia Bank and Elliott Associates v. Porsche (2011). SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1765901 - [1765901-016](https://wulfkaal.github.io/claims/1765901-016) [failure/argued] *(failure mode)* -- Treating the U.S. location of a broker as making the securities purchase domestic would circumvent most of the Morrison holding, since a foreign buyer of foreign securities could invoke U.S. law simply by routing the order through a U.S. broker. > The U.S. broker places the order based on an order from a foreign client, and U.S. securities law arguably would apply to the securities purchase, even if executed on a non-US. exchange. This line of argument would circum- vent most of the holding in Morrison. Kaal and Painter, The Aftermath of Morrison v. National Australia Bank and Elliott Associates v. Porsche (2011). SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1765901 **2012** - [2029983-033](https://wulfkaal.github.io/claims/2029983-033) [design/argued] -- The authors propose a rule under which, unless a transaction is unambiguously inside the United States, the transaction is not inside the United States if the parties have expressly stated that intent; this can be harmonized with both Morrison and the existing statutory framework. > rule would stipulate that unless a transaction is unambiguous- ly inside the United States, the transaction does not take place inside the United States if the parties have expressly stated their intent that it does not take place inside the United States. Wulf A. Kaal, Richard W. Painter, Forum Competition and Choice of Law Competition in Securities Law after Morrison v. National Austral (2012). SSRN: https://ssrn.com/abstract=2029983 - [2029983-035](https://wulfkaal.github.io/claims/2029983-035) [design/argued] -- The SEC, rather than the courts or Congress, is the institution positioned to implement a choice of law regime for securities transactions, through rulemaking. > This is where the SEC could step in to implement a choice of law regime through rulemaking. Wulf A. Kaal, Richard W. Painter, Forum Competition and Choice of Law Competition in Securities Law after Morrison v. National Austral (2012). SSRN: https://ssrn.com/abstract=2029983 ## Verify Every claim above resolves to a record carrying a verbatim source quote, the sha256 of the source PDF, and a preformatted citation. Nothing here asks to be taken on trust. curl -s https://wulfkaal.github.io/entities/transaction-location.md | sha256sum **Canonical form.** This markdown file is the canonical hashed representation of this entity node. Its sha256 is the content hash.