Corporate Governance: Arrangements & Laws eJournal最新文献

{"title":"The Corporate Governance Review: United States (2nd Ed.)","authors":"A. Emmerich, William Savitt, Sabastian V. Niles, S. Ongun","doi":"10.2139/ssrn.3625832","DOIUrl":"https://doi.org/10.2139/ssrn.3625832","url":null,"abstract":"The sources of corporate governance law and regulation in the United States are state corporate law (predominantly Delaware, in which over half of all US publicly traded corporations are incorporated); the federal 1933 Securities Act and 1934 Securities Exchange Act and regulations of the Securities and Exchange Commission (‘the SEC’) under those Acts; stock exchange listing rules (predominantly the New York Stock Exchange (‘the NYSE’) and the NASDAQ); proxy advisory firms (predominantly Institutional Shareholder Services (‘ISS’)) and the influence those proxy advisers have on the institutional investor community; and federal statutes in regard to particular areas of corporate practice (for example, the Hart-Scott-Rodino Act requiring antitrust pre-clearance of most corporate acquisitions, the Federal Reserve and other federal and state agencies with respect to banks and other financial institutions, the Foreign Corrupt Practices Act prohibiting bribery and other corrupt practices in other countries by domestic entities and certain foreign issuers of securities). Because of the federal system of US law, these different sources of law are not always harmonized and corporations are often subject to different obligations to federal and state governments, as well as regulators at each level of government. This mosaic of rules and regulations, and the various authorities and mechanisms by which they are implemented and enforced, make for an environment of frequent change and evolution.","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126254280","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":"Fannie Mae, Freddie Mac, & Due Diligence Failures: Should Comparative Responsibility be Imposed on a GSE’s Claims Brought Under Sections 11(a) & 12(a)(2) of the Securities Act of 1933?","authors":"Alexander Scott Bonander","doi":"10.2139/SSRN.2032677","DOIUrl":"https://doi.org/10.2139/SSRN.2032677","url":null,"abstract":"During the financial crisis Fannie Mae and Freddie Mac lowered their underwriting standards and due diligence requirements for qualifying mortgages and mortgage-backed securities. Currently, the FHFA, their conservator, has filed claims under sections 11(a) and 12(a)(2) of the Securities Act of 1933 against many of the largest banks claiming a material misrepresentation or omission occurred on the registration statement and prospectuses of securities purchased by Fannie and Freddie. Under current law, those associated with the registration statements and prospectuses will be held to near strict liability. This note argues that a comparative-responsibility standard, due to Fannie Mae and Freddie Mac’s status as government-sponsored entities should be applied when allocating responsibility for good-faith errors under sections 11(a) and 12(a)(2).","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"52 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125068500","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":"What Kind of Financial Regulation for the 21st Century?","authors":"Eric Pichet","doi":"10.2139/SSRN.2026924","DOIUrl":"https://doi.org/10.2139/SSRN.2026924","url":null,"abstract":"The collapses of major financial institutions during the latest crisis have 5 common causes both internal (authoritarian leader, failing on internal governance system, use of leverage) or external (access to cheap short-term funding, regulators nonchalance). The lessons to be drawn are an improvement in internal governance with Board of directors really competent and independent from the leader, and a better regulation which doesn’t mean an overregulation (the more obvious risk in 2012).","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"158 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133034616","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 Firm Performance","authors":"Anup Agrawal, C. Knoeber","doi":"10.1093/oxfordhb/9780199782956.013.0022","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780199782956.013.0022","url":null,"abstract":"This paper reviews the literature on corporate governance and firm performance in economies with relatively dispersed stock ownership and an active market for corporate control, such as the US and the UK. We provide a conceptual overview, suggest important issues, and offer a pathway to this large literature. Section 1 outlines a framework of the basic agency problem between managers and shareholders and the corporate governance mechanisms that have evolved to address this problem. Section 2 deals with the relation between firm performance and inside ownership. Section 3 pertains to the relation between firm performance and monitoring by large shareholders, monitoring by boards, and shareholder rights regarding takeover of the firm. Section 4 considers the relation between governance regulation and firm performance. Section 5 deals with the relation between governance and firm performance in family firms, and section 6 provides a summary and identifies some remaining puzzles and unresolved issues for future research.","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125817322","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":"License to Deal: Mandatory Approval of Complex Financial Products","authors":"S. Omarova","doi":"10.2139/ssrn.1996755","DOIUrl":"https://doi.org/10.2139/ssrn.1996755","url":null,"abstract":"In the wake of the recent crisis, policy-makers and academics continue to debate how to control and reduce systemic risk associated with financial innovation, complexity, and growing interconnectedness of global financial markets. This Article argues that an effective method of achieving that goal is to establish ex ante regulatory controls that target risk before it is introduced into the financial system. The Article offers the first comprehensive analysis of one particular method of such ex ante regulation – mandatory pre-market product approval – and its potential applicability to complex financial instruments, including derivatives, asset-backed securities, and other structured products.The Article examines key features of three historical experiments with product approval regulation: licensing of pharmaceutical drugs by the U.S. Food and Drug Administration, the European Union’s newly adopted Regulation on Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), and a system of mandatory pre-approval of commodity futures contracts administered by the Commodity Futures Trading Commission from 1974 to 2000. Building on these examples, the Article discusses whether, and how, a similar regime can operate as a gatekeeping device that aims explicitly at reduction of systemic risk and strategic complexity in financial markets. The core of the proposal advanced in this Article is the process for product approval, which would require financial institutions to make an affirmative showing that each complex financial product they intend to market meets three statutory tests: (1) an “economic purpose” test, which would place the burden of proving commercial utility of each proposed financial instrument on the financial institutions seeking approval; (2) an “institutional capacity” test, which would require a review of the applicant firm’s ability to manage the risks and monitor the market dynamics of the proposed product effectively; and (3) a broad “systemic effects” test, which would require a finding that approval of the proposed product does not pose an unacceptable risk of increasing systemic vulnerability and otherwise does not raise significant public policy concerns. The proposed approach does not seek to prohibit any financial activities. It merely imposes the duty to provide information necessary for evaluating potential risks and benefits of a specific financial product on the party that has the best access to such information and the greatest incentives not to disclose it voluntarily. Acknowledging significant implementation challenges, the Article argues that mandatory product approval should be taken very seriously as a potentially effective method of advancing the public interest in the more robust systemic risk prevention, as well as enhancing the efficient operation of financial markets.","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130465266","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 and Case Law Relating to Financial Derivatives","authors":"E. Wymeersch","doi":"10.2139/SSRN.1988925","DOIUrl":"https://doi.org/10.2139/SSRN.1988925","url":null,"abstract":"The widespread use of derivatives has created considerable new risks, especially of a systemic nature. To reduce risks regulators hare mandating the use of central counter-parties, of trade repositories and of regulated trading facilities. The paper gives a short overview of pending European proposals. It also deals with the court decisions that have been rendered in relating to derivatives, or structured products in several European jurisdictions, especially opposing local authorities and private investors to banks.","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"79 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-01-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134579213","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":"Doing Battle with Short Sellers: The Conflicted Role of Blockholders in Bear Raids","authors":"N. Khanna, Richmond Mathews","doi":"10.2139/ssrn.1434387","DOIUrl":"https://doi.org/10.2139/ssrn.1434387","url":null,"abstract":"If short sellers can destroy firm value by manipulating prices down, an informed blockholder has a powerful natural incentive to protect the value of his stake by trading against them. However, he also has a potentially conflicting incentive to use his information to generate trading profits. We show that a speculator can exploit this conflict and force the blockholder to buy a disproportionately large amount to prevent value destruction. This is costly for the blockholder because the trades must sometimes be executed at inflated prices. Given reasonable constraints on short sellers, a sufficiently large blockholder will have the incentive to absorb these losses and prevent a bear raid. However, conditions exist under which outside intervention may be warranted.","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129159844","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":"Accounting Fraud: An Estimation of Detection Probability","authors":"A. Wuerges, Jose Alonso Borba","doi":"10.2139/ssrn.1954783","DOIUrl":"https://doi.org/10.2139/ssrn.1954783","url":null,"abstract":"Financial statement fraud (FSF) is costly for investors and can damage the credibility of the audit profession. To prevent and detect fraud, it is helpful to know its causes. The binary choice models (e.g. logit and probit) commonly used in the extant literature, however, fail to account for undetected cases of fraud and thus present unreliable hypotheses tests. Using a sample of 118 companies accused of fraud by the Securities and Exchange Commission (SEC), we estimated a logit model that corrects the problems arising from undetected frauds in U.S. companies. To avoid multicollinearity problems, we extracted seven factors from 28 variables using the principal factors method. Our results indicate that only 1.43 percent of the instances of FSF were publicized by the SEC. Of the six significant variables included in the traditional, uncorrected logit model, three were found to be actually non-significant in the corrected model. The likelihood of FSF is 5.12 times higher when the firm’s auditor issues an adverse or qualified report.","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"164 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-11-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132135572","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 Paradoxes of Secured Lending: Is There a Less Uneasy Case for the Priority of Secured Claims in Bankruptcy?","authors":"Wei Zhang","doi":"10.2139/ssrn.1986908","DOIUrl":"https://doi.org/10.2139/ssrn.1986908","url":null,"abstract":"This paper is inspired directly by two articles coauthored by Professors Bebchuk and Fried, which comprehensively questioned the efficiency of the bankruptcy priority awarded to secured claims. It starts by pointing out the following efficiency benefit of such priority largely unmentioned in the legal literature, including the Bebchuk and Fried articles: the priority of secured debts undermines borrowers’ incentives to pursue excessively risky investment projects under certain circumstances. However, this additional benefit also exposes two interrelated paradoxes pertaining to the welfare effects of secured claims with bankruptcy priority. For one thing, while issuance of secured senior debts helps constrain over-risky investment incentives in some contexts, it nevertheless promotes this kind of incentives in others. For another, the advantage of disincentivizing excessive risk-taking behaviors rests exactly on the distribution effects of the priority enjoyed by secured lenders. By identifying and elaborating these paradoxes of secured lending, this paper contributes to the literature in two aspects. First, it underlines the overshadowed function of secured lending in attenuating over-investment incentives, which so far has been left out of the calculus when the efficiency of secured debts is assessed by most legal scholars. In particular, this study reminds us of the potential price of aggravated risk-taking behaviors if tort claims are entrenched with a super priority status in bankruptcy, an issue barely brought up in the literature. Second, this paper also cautions the proponents of the secured credit priority system on the fragility of its presumed efficiency which hinges substantially upon its distributional outcomes. The paradoxes discussed in this paper will challenge the efforts to buttress the priority of secured claims by qualifying the scope of potential victims of its distributional effects. My discussion will show that the smaller the scope of victims, the lower the significance of secured lending in boosting efficiency. Essentially, this paper extends the logic underlying “the puzzle of secured debt” to the efficiency analysis of secured lending from a broader perspective. Although it is not aimed specifically at offering new solutions to the puzzle, this paper seeks to clarify misunderstandings in previous works following primarily the framework laid down by Professor Schwartz.","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"70 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130597228","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 Diversification Discount: The Implications of the Sarbanes-Oxley Act","authors":"Anwar S. Boumosleh, Brandon N. Cline, Fawzi Jaber Hyder, Adam S. Yore","doi":"10.2139/ssrn.1933105","DOIUrl":"https://doi.org/10.2139/ssrn.1933105","url":null,"abstract":"We examine whether the Sarbanes-Oxley Act has a major role in reducing the diversification discount and enhancing internal capital markets efficiency. The act proposes new rules and regulations on financial practice and reshapes corporate governance to insure alignment of incentives between corporate insiders and investors. We check the relationship between corporate governance variables and the diversification discount. Finally, we conclude the indirect effects of the act in enhancing efficiency and reducing the diversification discount. We find that the level of corporate governance, especially CEO power, affects the efficient allocation of resources and the diversification discount correspondingly. However, we find that the sensitivity of the diversification discount to CEO power decreases significantly after the implementation of the Sarbanes-Oxley Act, which implies that the restrictions and regulations passed by the act enhance corporate governance and limit the misallocation of resources and the diversification discount respectively.","PeriodicalId":171263,"journal":{"name":"Corporate Governance: Arrangements & Laws eJournal","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124081852","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}