Corporate Governance: Arrangements & Laws eJournal最新文献

{"title":"Toward a Horizontal Fiduciary Duty in Corporate Law","authors":"Asaf Eckstein, Gideon Parchomovsky","doi":"10.2139/ssrn.3134607","DOIUrl":"https://doi.org/10.2139/ssrn.3134607","url":null,"abstract":"Fiduciary duty is arguably the single most important aspect of our corporate law system. It consists of two distinct sub-duties — a duty of care and a duty of loyalty — and it applies to all directors and corporate officers. Yet, under extant law, the duty only applies vertically, in the relationship between directors and corporate officers and the firm. At present, there exists no horizontal fiduciary duty: directors and corporate officers owe no fiduciary duty to each other. Consequently, if one of them fails her peers, they cannot seek direct legal recourse against her even when they stand to suffer significant reputational and financial losses. This state of affairs is undesirable not only from a fairness perspective, but also from an efficiency standpoint as it raises governance costs for firms and may undermine their ability to attract skillful officers and directors. \u0000 \u0000In this Essay, we call for the introduction of a horizontal fiduciary duty among directors and corporate officers. The proposed duty would complement, rather than replace, the fiduciary duty that corporate officers owe the corporation and the shareholders. We argue that the institution of a horizontal fiduciary duty would (1) lead to improved decisionmaking and information sharing on boards; (2) enable board members to vindicate themselves in situations in which another board member is the one to breach the fiduciary duty; (3) attract more capable individuals to serve as directors; and (4) improve corporate management and governance.","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114782231","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Takeovers, Shareholder Litigation, and the Free-Riding Problem","authors":"Mark Broere, Robin Christmann","doi":"10.2139/ssrn.3365001","DOIUrl":"https://doi.org/10.2139/ssrn.3365001","url":null,"abstract":"When shareholders of a target firm expect a value improving takeover to be successful, they are individually better off not tendering their shares to the buyer and the takeover potentially fails. Squeeze-out procedures can overcome this free-riding dilemma by allowing a buyer to enforce a payout of minority shareholders and seize complete control of the target firm. However, it is often argued that shareholder protection laws and litigation restore or intensify the free-riding dilemma. Applying a game theoretic setting, we demonstrate that it is not shareholder litigation that brings back the free-riding dilemma, but rather the strategic gambling of buyers for lower prices and flaws in the design and application of squeeze-out laws. We find, for example, that lawmakers should refrain from setting separate legal thresholds for corporate control and squeeze-outs. We also analyze a favorable change in jurisdiction of the German Federal Court and provide implications for legal policy.","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"117 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123684974","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Efficiency Offence of Leading Merger","authors":"A. Mazyaki, Bahman Alipour Shandiz","doi":"10.2139/ssrn.3352724","DOIUrl":"https://doi.org/10.2139/ssrn.3352724","url":null,"abstract":"We investigate consequences of a situation in which a merged subgroup of firms leads the market, after which merger experiences reduced marginal cost. Results show that while introduction of higher cost synergy to the model increases firms’ motive to merge, it may not necessarily mitigate concerns of “efficiency offence”. In fact, while exit strategy of outsiders may prevent efficiency of the merger to improve social welfare; cost synergy may excessively reinforce the phenomenon.","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"139 ","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120870142","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Ethics and Talent in Banking","authors":"Fenghua Song, A. Thakor","doi":"10.2139/ssrn.3347492","DOIUrl":"https://doi.org/10.2139/ssrn.3347492","url":null,"abstract":"This paper develops a theory of optimal ethical standards, capital requirements and talent allocation in banking wherein two types of banks, one being protected by regulatory safety nets (\"depositories\") and the other not so protected (\"shadow banks\"), innovate financial products and compete for managerial talent. Ethical violations are \"mis-selling\" products to customers who would not benefit from them, and they entail financial losses and regulatory penalties for the miscreant bank. Bank capital is shown to be more efficient than a penalty for implementing ethical standards. For any capital level, banks choose higher ethical standards and experience fewer ethical violations when bank managers are more talented. However, banks adopting higher ethical standards experience managerial talent migration to banks with lower standards. In equilibrium, endogenously-determined regulatory capital and ethical standards are higher in depositories than in shadow banks, and this difference is bigger with talent competition than without. Consequently, depositories hire less talented managers and innovate less, implying that prudential bank regulation has unavoidable labor market consequences in financial services.","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122347212","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Investment Services and Investment Funds","authors":"Filippo Annunziata","doi":"10.2139/ssrn.3345943","DOIUrl":"https://doi.org/10.2139/ssrn.3345943","url":null,"abstract":"Investment services and activities, on the one side, and collective investment management, on the other, are two of the main silos in which capital markets legislation is currently articulated. They have different origins and originally stem from different needs: investment funds were first regulated in 1985, by the first UCITS Directive, which was mainly concerned with the creation of a single market for open-ended, retail-oriented investment funds, and basically provided a system of passporting for the UCITS product, coupled with a first system of rules aimed at providing investor protection. Most of the latter were, essentially, rules concerning separation and segregation of assets, and rules on risk diversification and liquidity. Investment services regulation saw the wake, under EU Law, in 1993, and covered a large area of activities, that had been left outside the scope of EU harmonization. Trading venues underwent a first, significant transformation. The focus of investment services has traditionally been on retail-investor protection, coupled with different forms of prudential supervision. Overtime, the framework for investment services regulation in the EU has become more and more articulated, and investment fund rules have been extended to all CIUs falling under the definition of the 2011 AIFM Directive. Several elements, typical of investment services approach (in particular, the one stemming from MiFID I and more recently MiFID II) have then been incorporated into the UCITS and AIFMD Directives, and the MiFID approach is now contaminating several other areas of EU Financial Services regulation. A sort of common, trans-sectorial standard for investor protection is beginning to emerge, and may be the basis for future developments and integration of EU legislation.","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"96 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125986564","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Banking Institutions Insolvency Regime in India – A Glance at The Financial Resolution and Deposit Insurance Bill 2017","authors":"R. Deshpande","doi":"10.2139/ssrn.3402844","DOIUrl":"https://doi.org/10.2139/ssrn.3402844","url":null,"abstract":"Taking into account the lacuna in the resolution framework, Indian bankruptcy and insolvency related regulations recently underwent a major overhaul when the Insolvency and Bankruptcy Code, 2016 was enacted in India and the draft of the Financial Resolution and Deposit Insurance Bill 2017 was introduced. The focus in the coming years would have been on these two pieces of legislation to save the deteriorating condition of the Indian economy. However, this was not to be. The draft Financial Resolution and Deposit Insurance Bill 2017 was withdrawn from the parliament of India in July 2018.<br><br>The draft Financial Resolution and Deposit Insurance Bill 2017 dealt with the Indian economic and financial sectors which have started cracking under the pressure of bad loans and the distressed banks. It introduced concepts such as the bail-in provision, the bridge service provider, formulation of a central resolution corporation, which haven’t yet been used in the Indian banking scenario. The draft Financial Resolution and Deposit Insurance Bill 2017 focused on the age-old locution – ‘prevention is better than cure’ thus looking at saving the distressed entities before they head for insolvency.<br><br>Through this piece of research, the author examines the draft Financial Resolution and Deposit Insurance Bill 2017 while also giving a background on its withdrawal.<br>","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"93 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115730514","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Shareholders’ Draft Resolutions in Estonian Company Law: An Example of Unreasonable Transposition of the Shareholder Rights Directive","authors":"Andres Vutt, Margit Vutt","doi":"10.12697/JI.2018.27.07","DOIUrl":"https://doi.org/10.12697/JI.2018.27.07","url":null,"abstract":"One of the measures foreseen in the Shareholder Rights Directive for enhancement of the rights of shareholders is the regulation of draft resolutions. The article addresses the central question of whether the extent of the implementation of the requirements regulating draft resolutions and their disclosure in Estonian company law has been justified. Research was conducted to analyse whether the transposition of the rules on draft resolutions derived from the directive has contributed to the attainment of the objectives set out in the directive and in other European initiatives. The main conclusions presented in the article are that, as a result of the transposition of the Shareholder Rights Directive, Estonian small limited companies have a burdensome obligation to follow the formalised rules on draft resolutions and their disclosure, which, according to the directive, were initially meant only for listed companies. Although the Supreme Court of Estonia had an opportunity to interpret the respective regulations reasonably, it has chosen a rather formal approach instead and applied the law in quite possibly the most burdensome way for Estonian companies and contrary to the aims for the directive as the source of those regulations. The authors of the article take the stance that there is a need to change the rigid rules on draft resolutions that have been forced on Estonian small companies. The present mandatory rules on draft resolutions should be applicable to listed companies only. All other public limited companies should be given an opt-in option. As for private companies, the law should clearly set out the possibility of stipulating the appropriate rules in the articles of association of the company. ","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"198 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132619632","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Enforcement of Financial Market Crimes in Canada and the United Kingdom","authors":"A. Anand","doi":"10.2139/SSRN.3333163","DOIUrl":"https://doi.org/10.2139/SSRN.3333163","url":null,"abstract":"This piece undertakes a comparative analysis of the enforcement of financial market crimes in Canada and the United Kingdom. In both jurisdictions, financial market crimes have low enforcement rates for a multiplicity of reasons common to both jurisdictions. First, financial market crimes appear to be a relatively low priority for law enforcement officials who are required to devote increasing resources to violent crimes. Second, law enforcement infrastructure lacks financial resources which undermines the investigation and prosecution of financial market crime and fraud cases. Third, technology has allowed new types of fraud to develop, with insufficient human and financial resources to deal with them. Fourth, past treatment of financial market criminals as pillars of the community who have merely had a fall from grace has weakened public perceptions of the harm caused by these crimes. Despite the existence of agencies and regulators specially designated to address these issues, there seems to be no formal and effective strategy in either jurisdiction to tackle the problem of financial market enforcement. The problems with enforcement are not exclusively legal, and cannot be solved through legal reform alone. Nevertheless, reform to the law is essential in both jurisdictions. In particular, as this chapter argues, reforms should dedicate greater resources to financial market criminal enforcement, introduce principles-based regulation, and facilitate inter-agency coordination, as well as pursue other targeted regulatory reforms.","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"1996 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125568900","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"New Frontiers in Private Fiduciary Law","authors":"P. Miller","doi":"10.1093/OXFORDHB/9780190634100.013.46","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780190634100.013.46","url":null,"abstract":"This chapter charts new frontiers of scholarly inquiry in fiduciary law. The chapter first orients the reader by taking stock of the current state of play in fiduciary scholarship. It then identifies a range of important questions that should inspire future work in the field. More specifically, it identifies pressing questions of legal theory (conceptual and normative analysis), economic and empirical legal studies (including classical and behavioral economic analysis), and historical and sociological inquiry. The chapter also raises questions of interest to private law theorists and scholars interested in exploring the significance of fiduciary principles within various subfields, from trust and corporate law to health law and legal ethics.","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134056716","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Kodexakzeptanz 2018: Analyse der Entsprechenserklärungen von DAX- und MDAX-Gesellschaften zum Deutschen Corporate Governance Kodex (Code Compliance 2018: Analysis of the Declarations of Conformity with the German Corporate Governance Code)","authors":"Johannes Beyenbach, M. S. Rapp, C. Strenger, Michael Wolff","doi":"10.2139/ssrn.3182962","DOIUrl":"https://doi.org/10.2139/ssrn.3182962","url":null,"abstract":"German Abstract: Die Studie analysiert und bewertet systematisch und umfassend die Akzeptanz der aktuellen, vierzehnten Fassung des Deutschen Corporate Governance Kodex (DCGK) durch DAX-und MDAX-Gesellschaften anhand der durch §161 AktG vorgeschriebenen Entsprechenserklarungen. Analysiert wird das grundsatzliche Niveau der Kodexakzeptanz, aber auch das Entsprechensverhalten der Gesellschaften auf Kapitel- und Ziffernebene, bis hin zur Analyse einzelner Empfehlungen. Daruber hinaus untersucht die Studie die Governance Qualitat der Gesellschaften basierend auf vier eigens hierfur konstruierten Governance Indizes, welche die Kernbereiche Transparenz, Kontrolle/Uberwachung, Anreizsysteme und Vielfalt abbilden. Erganzt wird dies um Analysen hinsichtlich des Verhaltens bezuglich Kodexanregungen, des Zusammenhangs zwischen Complianceverhalten und Unternehmensgrose bzw. Eigentumerstruktur und einer Analyse der im Rahmen der Entsprechenserklarungen gegebenen Erlauterungen. \u0000Im Rahmen der Studie werden die bis 31. Marz 2018 veroffentlichten Entsprechenserklarungen (gemas §161 AktG) der in DAX und MDAX notierten Gesellschaften analysiert. Die untersuchten Unternehmen reprasentieren zu Ende 2017 etwa 86 Prozent der Marktkapitalisierung des Prime Standard der Deutschen Borse, sodass die Studie einen umfassenden und gleichzeitig individuell- differenzierten Blick auf die marktrelevante Akzeptanz des DCGK in den grosten deutschen Aktiengesellschaften vermittelt. \u0000English Abstract: The Code Compliance Study 2018 examines the acceptance level of the current version of the German Corporate Governance Code (GCGC) within DAX and MDAX firms. The study analyses overall compliance, as well as the firms’ compliance behavior on the level of chapters, items and even single GCGC recommendations. \u0000In addition, the study examines the firms' governance quality based on four specially constructed governance indices that represent the key areas of governance (transparency, monitoring/control, incentives and diversity). Moreover, compliance behavior with respect to GCGC's suggestions as well as the relationship between firm characteristics and compliance levels is analyzed. Overall, the study presents a broad and comprehensive view on code compliance behavior of German listed firms.","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"32 2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-04-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123797267","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}