Corporate Governance: Arrangements & Laws eJournal最新文献

{"title":"Corporate Law and Self-Regulation","authors":"D. Kershaw","doi":"10.2139/SSRN.2574201","DOIUrl":"https://doi.org/10.2139/SSRN.2574201","url":null,"abstract":"This paper explores the different ways in which market actors are “co-opted” as corporate law regulators. It considers the the preconditions for generating “endogenous self-regulation” through the lens of the formation and operation of the UK Takeover Code and Panel. The paper argues that its incontrovertible success as a command, control and surveillance regulator is in large part attributable to merchant (investment) banking control over the production of the original Code and the ways in which the Code generates direct and indirect income opportunities for investment bankers in takeover activity, referred to in the paper as “bribing the quarterback”. The paper also uses the Takeover Panel example to explore the unexpected regulatory biases that are generated by the survival and legitimacy concerns of the self-regulator itself. From endogenous self-regulation, the paper moves onto consider “market-controlled” regulation where the state directly co-opts market actors as regualators. Using the example of “comply or explain” corporate governance codes the paper explores the powerful market-based enforcement drivers and argues that these drivers interact with a “comply or explain” regulatory outlook that is likely to, and does, lead to sub-optimal regulation that overweights accountability concerns. Setting these regulatory effects alongside the regulatory biases identified in the analysis of the Takeover Code, the paper shows that the regulatory biases generated by self-regulation are more muli-faceted than, and often inconsistent with, the standard account that self-regulation is likely to generate rules that favour the regulated.","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114636972","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":"Changing Law and Ownership Patterns in Germany: Corporate Governance and the Erosion of Deutschland AG","authors":"W. Ringe","doi":"10.2139/ssrn.2457431","DOIUrl":"https://doi.org/10.2139/ssrn.2457431","url":null,"abstract":"German corporate governance and corporate law are currently undergoing a major change. The old “Deutschland AG”, a nationwide network of firms, banks, and directors, is eroding, ownership is diffusing and the shareholder body is becoming more international than ever. This paper presents new data to support this development and explores the consequences in governance and in law that have been taken or that need to be drawn from this finding. Consistent with market-based theoretical accounts on corporate law, it finds that the changes currently underway are mainly a response to global market pressure: German banks divested their equity stakes mainly as a consequence of increased international competition.The paper extends the model of market-led change by two important observations: first, market pressure is not the only driver of legal change, but the law itself in this case contributed to facilitating competition. Notably, a taxation law reform enabled and accelerated the competition process already underway. Legal rules and market competition may thus be understood as not operating in isolation, but as forces that can be working in dialog. Secondly, the paper highlights the importance of ownership structure as an important intermediate condition in the logical order between market competition and legal change.","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130501192","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":"Investing and Pretending","authors":"Anita K. Krug","doi":"10.2139/SSRN.2493278","DOIUrl":"https://doi.org/10.2139/SSRN.2493278","url":null,"abstract":"One of the more prominent components of Dodd-Frank’s regulatory changes was Title VII, providing for the regulation of the over-the-counter derivatives known as swaps. Although there was much ado about that regulation immediately after Dodd-Frank’s enactment, the same cannot be said of the many rules that the Commodity Futures Trading Commission (“CFTC”) has subsequently adopted pursuant to its authority under Title VII. This Article is the first scholarly work to critically evaluate the CFTC’s “swap rules” and to identify the regulatory vision that they reflect. Based on that evaluation, it argues that the swap rules are grounded in a notable distinction between swaps and another financial market instrument — namely, securities. In particular, whereas “investing” is the hallmark of securities transactions, swap transactions fall under the rubric of “pretending,” a concept that this Article employs to elucidate the function and structure of swaps. After all, the value of a swap is based on an asset — the “reference asset” — that is wholly unrelated to the swap itself. Each party to a swap pretends that it holds either a long position or a short position in the reference asset, making payments to (or receiving payments from) the other party based on the performance of that position. Yet, as the Article further contends, although the distinction between investing and pretending is vividly reflected in the CFTC’s approach to crafting the swap rules, the distinction is irrelevant for regulatory purposes. Moreover, the substantial regulatory costs arising from the CFTC’s pretense-based approach to swap regulation are likely to excessively hinder swap use, as firms seeking to mitigate risk turn to other types of hedging strategies in situations in which using swaps would otherwise be more socially beneficial. With the goal of efficient and coherent regulation in mind, the Article proposes that a substantially better approach to the CFTC’s swap rules would be to predicate them not on pretending, as the counterpoint to investing but, rather, on something that swap transactions and securities transactions have in common — and on which securities regulation, too, is based: the risks arising from speculation.","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126548895","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 OIRA Model for Institutionalizing CBA of Financial Regulation","authors":"Ryan Bubb","doi":"10.2139/SSRN.2484008","DOIUrl":"https://doi.org/10.2139/SSRN.2484008","url":null,"abstract":"This Essay is a brief response to the stimulating essays on cost-benefit analysis of financial regulation by Professors Coates and Cox in this volume. Both Coates and Cox largely agree that we want policy decisions about financial regulation to be made using what Coates refers to as “conceptual cost-benefit analysis (CBA).” However, both express some skepticism about quantified CBA in financial regulation. Coates observes that he has yet to find a single example of a “reliable, precise quantified CBA of a significant financial regulation,” despite significant efforts to identify one. This stands in stark contrast to many other regulatory domains in which highly sophisticated, quantitative CBA plays a central role, including environmental, health, safety, and antitrust regulation. Why is financial regulation such an outlier with relatively little CBA? Coates’s explanation is that CBA of financial regulation is “an order of magnitude more difficult than its advocates seem to believe.” But CBA plays little role in financial regulation not because CBA of financial regulation is especially challenging but rather because we have not created institutional structures that produce incentives for financial regulators to develop and employ CBA. Centralized regulatory review within the executive branch — the OIRA model that has been so successful in other regulatory domains — should be applied to spur the institutionalization of CBA of financial regulation.","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132789551","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":"Incorporating Corporate Rights","authors":"W. Marks","doi":"10.2139/SSRN.2445548","DOIUrl":"https://doi.org/10.2139/SSRN.2445548","url":null,"abstract":"Why exactly must the states respect federal Bill of Rights protections that apply to corporations? In Citizens United v. FEC, 558 U.S. 310 (2010), the Supreme Court held that corporations enjoy the First Amendment’s freedom of speech. Then, in American Tradition Partnership v. Bullock, 132 S. Ct. 2490 (2012), the Court incorporated that holding to the states. Oddly, though, the per curiam opinion in the latter case did not mention the constitutional doctrine of incorporation. It did not mention due process. It did not even mention the Fourteenth Amendment.This omission is indeed surprising, as the Bill of Rights does not apply to the states but for their incorporation through the Fourteenth Amendment’s Due Process Clause. Now of course, the Court long ago incorporated the First Amendment to the states. But that incorporation was to protect “liberty,” and the Court has also long held that corporations, as artificial entities, do not enjoy the “liberty” that the Fourteenth Amendment protects. So again, why must the states respect federal Bill of Rights protections that apply to corporations? As for the First Amendment, the Court addressed this exact question in First National Bank of Boston v. Bellotti, 437 U.S. 765 (1978). The analysis in Bellotti, however, suggests that the First Amendment is somewhat sui generis. That uniqueness naturally raises the question, must the states respect other Bill of Rights protections that corporations now enjoy — or might soon enjoy? Must states provide jury trials for corporate criminal-fines cases? What about if corporations have Second Amendment rights?This Article aims to provide an answer. It draws on two sources, one more recent, and the other from 1868. The first is organizational and associational standing, which scholars have recently proffered as providing coherence to the Court’s corporate-rights jurisprudence. But with respect to the unique problem of incorporating corporate rights, group-entity standing by itself fails to fully solve the incorporation problem. We need something more.That something, this Article argues, is the Fourteenth Amendment’s Property Clause. A property-based account of the incorporation of corporate rights explains why states must respect certain corporate rights. It explains why they do not have to respect others. And it avoids overturning long-standing precedent. After explaining the property-based approach, the Article concludes by explaining which federal Bill of Rights protections corporations should enjoy at the state level.","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"389 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132367743","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":"Investor Protection in Italy","authors":"Itisha Gupta","doi":"10.2139/ssrn.2403077","DOIUrl":"https://doi.org/10.2139/ssrn.2403077","url":null,"abstract":"The financial crisis affected all the nations of the world. It affected Italy also. But Italy is recovering and so are the investor protection measures. In this paper, an effort has been made to understand the concepts of investor and investor protection. These are further studied extensively in the light of the Italian economy. An analysis has been made about how the investor protection schemes are made in Italy, and what are the factors that affect it. The paper concludes by proving that the Italian investor protection measures are stable and sufficient for the Italian economy and for all the investors who want to make investments in its financial markets.","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-02-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130480901","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":"Making Bank Resolution Credible","authors":"J. Armour","doi":"10.2139/SSRN.2393998","DOIUrl":"https://doi.org/10.2139/SSRN.2393998","url":null,"abstract":"Financial difficulties at large financial institutions present governments and regulators with an unenviable dilemma. On the one hand, they are afraid to permit such a firm to enter 'ordinary' insolvency proceedings, lest this transmit financial shock to other, connected, institutions. Yet every voter can grasp the moral hazard problems and distributional inequity associated with government handouts for the financial sector. Consequently many jurisdictions have introduced, or are designing, 'special resolution' mechanisms for financial institutions. The first generation of such mechanisms were based on the US FDIC receivership regime. They focus on waiving property rights so as to effect a very rapid transfer of complex assets and short-term liabilities to a purchaser who will be able to stand behind those liabilities and thereby ensure stability. This model works well for small to medium sized domestic banks, but is insufficient to provide a credible alternative to bailouts for large, complex financial institutions. As a result, a series of new measures — which we have termed 'second generation' resolution mechanisms — have been developed. First, there has been a realization that the level of complexity is such that resolution ex post is impossible without careful planning by supervisors ex ante. Second, this planning process can be used not only to understand, but also to modify, the structure of complex financial institutions and their regulatory oversight so as to facilitate resolution should it be necessary. Third, the use of 'bail-in' or mandated debt to equity swaps provides a potentially very useful additional resolution tool when used in conjunction with such forward planning and oversight. Fourth, in the context of international financial institutions, coordination and allocation of responsibility amongst national regulators is an integral part of the planning process. The implications of this shift are clear. For the resolution of large complex financial institutions to be credible, it must be thought of as an integral part of the ongoing oversight of financial institutions by regulators, and not as simply a set of mechanisms that are kept for troubled times. Investment in regulatory capacity — recruitment and training to build human capital in the regulatory sector — is therefore crucial to ensuring the success of resolution.","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"88 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-02-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125658864","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":"Corporate Governance and the Asymmetrical Behavior of Selling, General and Administrative Costs: Further Evidence from State Antitakeover Laws","authors":"Shimin Chen, S. Ni, Donghui Wu","doi":"10.2139/ssrn.2336916","DOIUrl":"https://doi.org/10.2139/ssrn.2336916","url":null,"abstract":"While both the economic and agency theory have been proposed to explain cost stickiness, Chen, Lu, and Sougiannis (2012) is the first study that provides evidence to support the agency explanation. To address the endogeneity concern, we extend Chen et al. (2012) by employing state antitakeover laws (ATLs) as an exogenous shock to the corporate governance environment and examine whether the behavior of selling, general and administrative (SG&A) costs changes around the passage of the ATLs. Using the difference-in-differences methodology, we report two primary findings. First, when sales increase, SG&A costs increase significantly more after the enactment of the ATLs, which is consistent with the ATL literature that managers enjoy the “quiet life” after being insulated from an active takeover market. Second and more importantly, we do not find evidence to suggest that managers reduce SG&A costs less in response to sales decline after the passage of the ATLs, which is inconsistent with the agency explanation of cost stickiness. These results hold in settings where we expect the effect of ATLs to be stronger and are robust to sensitivity analyses. Although we would not rule out the agency explanation, our study does cast doubt on the explanation and calls for further research into the reasons behind cost stickiness.","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129621544","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":"Regulation A+ Offerings - A New Era at the SEC","authors":"Samuel Guzik","doi":"10.2139/SSRN.2385115","DOIUrl":"https://doi.org/10.2139/SSRN.2385115","url":null,"abstract":"On December 18, 2013, the Commissioners of the U.S. Securities and Exchange Commission authorized the issuance of proposed rules intended to implement Title IV of the Jumpstart Our Business Startups Act of 2012 (the “JOBS Act”) — a provision widely labeled as “Regulation A Plus ” — and whose implementation was dependent upon SEC rulemaking. Title IV, entitled “Small Company Capital Formation”, was intended by Congress to expand the use of Regulation A — a little used exemption from a full blown SEC registration of securities which has been around for more than 20 years — by increasing the dollar ceiling from $5 million to $50 million. Both the scope and breadth of the SEC’s proposed rules, and the areas in which the SEC expressly seeks public comment, appear to represent an opening salvo by the SEC in what is certain to be a fierce, long overdue battle between the Commission and state regulators, the SEC determined to reduce the burden of state regulation on capital formation — a burden falling disproportionately on small business — and state regulators seeking to preserve their autonomy to review securities offerings at the state level.This Paper analyzes what may very well be an historic turning point regarding the Commission's policies towards state regulation of federally registered offerings, by limiting or eliminating the power of state regulators to review registered offerings under Regulation A Plus, and the impact this may be expected to have on small business.","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"71 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-01-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132116576","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":"Around the World of Securities Fraud in 80 Motions to Dismiss","authors":"Wendy Gerwick Couture","doi":"10.2139/SSRN.2373808","DOIUrl":"https://doi.org/10.2139/SSRN.2373808","url":null,"abstract":"Motions to dismiss are the litmus test in securities fraud class actions. A motion to dismiss is filed in virtually every securities fraud class action, and motions to dismiss are extraordinarily successful in securities fraud class actions. Therefore, courts’ opinions on motions to dismiss are immensely important to the evolution of the substantive and procedural law of securities fraud.In this Essay, I discuss emerging issues in courts’ rulings on motions to dismiss securities fraud class actions. In order to ensure that my comments reflect current trends in this ever-evolving area, I have analyzed a data set of 80 opinions issued in 2013 on motions to dismiss securities fraud class actions and drawn the following eight observations therefrom: A. Winnowing Is Real But Relatively Rare; B. Dicta Abounds, and That’s A Good Thing; C. Scienter Is (Still) King; D. The Falsity-Scienter Inference Continues to Percolate; E. The Core Operations Inference Is Hot; F. Subjective Falsity Matters; G. Puffery Is Untethered; H. What Rule 11 Findings Mandate?I hope that this journey around the world of securities fraud in 80 motions to dismiss provides guidance to litigants, courts, and scholars on this ever-evolving area of law. This Essay is drawn from my remarks at the 2013 Annual Institute for Investor Protection Conference: \"Effective and Ethical Pre-Filing Strategies for Investigating and Pleading Securities Fraud Claims,” sponsored by Loyola University Chicago School of Law’s Institute for Investor Protection and Institute for Law and Economic Policy.The Data Set Appendix for this paper is available at the following URL: http://ssrn.com/abstract=2373808","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"78 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124807599","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}