Corporate Law: Corporate Governance Law eJournal最新文献

{"title":"Rethinking How Business Purpose is Taught in Catholic Business Education","authors":"L. Johnson, M. Naughton, William Stanley Bojan, Jr.","doi":"10.2139/SSRN.2348470","DOIUrl":"https://doi.org/10.2139/SSRN.2348470","url":null,"abstract":"Business education at a Catholic university should engage students and faculty across the university in critically examining the purpose of business in society. Following the best practices of leading business schools, the Catholic business curriculum has mostly focused on the shareholder and stakeholder approaches - with the shareholder approach being the predominant view. Creatively engaging the Catholic Social Tradition (especially the “community of persons”) can bring a richer appreciation of the purpose of business in our contemporary society than either the shareholder or stakeholder approaches. We argue that far more discretion to pursue various corporate purposes in manifold ways exists than is frequently appreciated by business managers and those who educate them. This article examines how, given this legal and moral discretion, the Catholic Social Tradition is a rich resource for teaching corporate purpose, and reveals how tapping into a religious tradition with a long philosophical discourse can shape a rich dialogue in the curriculum as to a company’s moral direction. We contrast two philosophies of business: an Association of Individuals (the shareholder and stakeholder approaches) and a Community of Persons (mission-centric approach), and their respective views of corporate purpose. While business scholars tend not to question their underlying anthropological presuppositions because of the desire to be “practical,” a business education grounded in the liberal arts must engage the first principles of its discourse.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"123 6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-10-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129568526","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 Through Substitution as Policy Tool: Swap Futurization Under Dodd-Frank","authors":"Gabriel D. Rosenberg, Jai R. Massari","doi":"10.2139/ssrn.2256047","DOIUrl":"https://doi.org/10.2139/ssrn.2256047","url":null,"abstract":"Recently, significant market and regulatory attention has focused on a new trend known as “futurization” — the recasting of economic arrangements previously transacted as swaps to trade as futures. This trend results from new regulations governing swap markets under the Dodd-Frank Act, which increase the cost of transacting in swaps. Given the magnitude of the business and economic interests at stake — the swaps market is estimated at $633 trillion and the futures market is estimated to be $24 trillion — the futurization trend has significant implications for the success of the Dodd-Frank Act’s swap market reforms and can provide important insights to regulatory agencies as they seek to protect financial markets in the post-financial crisis environment.This Article is the first to provide an academic treatment of this trend and its implications for regulatory policymaking. We develop a simple economic model to explain how regulators can “regulate through substitution” by encouraging market participants to subject themselves to one regulatory regime versus another through the imposition of differential regulatory costs. By applying this model to three critical areas of CFTC swap rulemaking — margin requirements, protection of customer collateral and public dissemination of swap trading data — we predict the futurization effects of these regulations, which are in some cases contrary to what might be expected or desired. In doing so, we demonstrate how the common view of futurization as a trend affecting the swap markets in a uniform manner is overly simplistic and obscures the important lessons of futurization.Armed with this predictive tool, we believe that the CFTC can apply the regulation through substitution analysis to design regulations better to achieve its policy goals and to assess the costs and benefits of proposed regulations. This same tool can be used by other regulators that similarly oversee multiple related regulatory regimes to better implement their policy concerns in similar contexts.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"128 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122853656","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":"Favoritism and Corporate Law: The Confused Corporate Opportunity Doctrine in the Hyundai Motor Case","authors":"Hwan-Jin Kim, Seung Hwan Lee, Stephen M. Woodcock","doi":"10.2139/ssrn.2308998","DOIUrl":"https://doi.org/10.2139/ssrn.2308998","url":null,"abstract":"Core legal principles of U.S. corporate law are often met with perplexity in foreign jurisdictions. This is especially true for legal principles that are controversial even in the U.S. This Article takes the corporate opportunity doctrine and examines how it has been exported to the civil law regime in Korea. Korean conglomerates such as Samsung Group and Hyundai Motor Group have become major players in the global market, but corporate law and practice in Korea have had a difficult time keeping up with developments in the business sector. The Hyundai Motor Case demonstrates an ambitious, but ill-fated, attempt at the adoption of U.S. doctrine in Korea. This Article explains and analyzes the case and the new codified corporate opportunity doctrine rule in the Korean Commercial Code from a comparative perspective, and suggests that the dialogue surrounding the corporate opportunity doctrine in Korean legal and business communities is oriented in the wrong direction and that the new rule needs substantial refinement.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-08-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114214260","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":"Possible Conflicts of Interest with D&O Insurance in Event of Shareholders’ Class Actions","authors":"W. Weterings","doi":"10.2139/SSRN.2308553","DOIUrl":"https://doi.org/10.2139/SSRN.2308553","url":null,"abstract":"Listed companies and their directors and officers run an increasing risk of becoming involved in a shareholders’ class action. Since class actions involve significant compensation amounts, it is of vital importance to all parties involved that the directors/officers and the company being sued have adequate Directors & Officers (D&O) insurance. Without sufficient insurance, these directors and the company might have to bear compensation in whole or in part themselves. If they are incapable of doing so to one extent or another, which is usually the case in light of the extensive compensation amounts with class actions, the injured parties will receive nothing or incomplete compensation and the class action will not realise its goal. This also has a negative effect on the scope of liability law. D&O insurance is therefore relevant for both the parties involved in the collective action and for society. Nonetheless, conflicts of interest can arise between the company and the directors being sued in respect of the cover if they are underinsured. In addition, conflicts of interest between the various D&O insurers could also arise which can negatively affect both the insurance cover and the settlement of a promising class action. D&O insurance must be set up in such a way – given the various interests and in light of the goals of a collective action and liability law – that these potential conflicts of interest are prevented as much as possible. The first conflict of interest between the company and directors can be restricted through the inclusion of either an allocation clause or an order of payment clause. In addition, a choice can be made to make a (greater) division between the Side A and Side C coverage within the D&O insurance policy or to take out a separate Side A policy altogether. The potential effects of the conflicting interests between the various D&O insurers involved with regard to the cover and the claim settlement can be mitigated by incorporating a properly defined follow form clause and an adequate leading underwriter clause. In that context, but also independently thereof, in my opinion a direct duty of good faith and fair dealing of the primary insurer(s) toward excess insurers (and also a duty of care of excess insurers) should be adopted.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132582408","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":"Berle and Means Debate","authors":"R. Tripathy","doi":"10.2139/ssrn.2307472","DOIUrl":"https://doi.org/10.2139/ssrn.2307472","url":null,"abstract":"This paper discuss about the debate between berle and means on the basis of separation of ownership and control in corporate world to form good governance. Berle and Means researched the consequences of ownership and control being separate. As businesses grow and shareholders increase in number, any shareholdings that directors have will be a proportionally smaller capital stake. Directors' income will derive mostly from return on their labor as directors, not from their capital investment. If their motivation is purely pecuniary.Berle and Means argued that the structure of corporate law in theUnited States in the 1930s enforced the separation of ownership and control because the corporate person formally owns a corporate entity even while shareholders own shares in the corporate entity and elect corporate directors who control the company's activities. Compared to the traditional notion of property, say over one's laptop or bicycle, the functioning of modern company law “has destroyed the unity that we commonly call property”. This occurred for a number of reasons, foremost being the dispersal of shareholding ownership in big corporations: the typical shareholder is uninterested in the day to day affairs of the company, yet thousands of people like him or her make up the majority of owners throughout the economy. The result is that those who are directly interested in day to day affairs, the management and the directors, have the ability to manage the resources of companies to their own advantage without effective shareholder scrutiny.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124741956","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 Duty to Manage Risk","authors":"C. Hurt","doi":"10.2139/SSRN.2308007","DOIUrl":"https://doi.org/10.2139/SSRN.2308007","url":null,"abstract":"Shareholders, consumers, homeowners, borrowers, employees and other citizens were harmed, in some cases substantially, by the business practices of individuals at various financial firms leading up to the 2008 financial crisis. Unlike after other crises in the financial markets, such as the 2001 accounting fraud scandals, the public was not treated to the catharsis of criminal prosecutions or even large civil judgments and settlements. Instead, financial firms that incurred large losses on behalf of its shareholders repeatedly withstood attempts at legal redress in the courts by those shareholders. Shareholders were turned away from the courthouse door in cases involving federal securities law claims and claims of breaches of state law fiduciary duties. Scholars and commentators have focused on one area of fiduciary duty that seemed to fit: a claim that the board of directors of a firm failed to exercise its oversight duty to monitor firm-wide financial risk. However, this claim was also unsuccessful in the courts as judges viewed the duty to monitor risk as repackaging of the duty of care, which is significantly shielded from judicial review. Therefore, shareholders were left without a cause of action for admittedly “boneheaded” decisions of managers in light of changing economic circumstances.This Article argues that the failure of the short life of the duty to monitor risk is not a bad development, but a logical and reasoned one. To say that shareholders, and by extension, courts, should not second-guess business decisions of boards of directors that are the result of a rational process, but to say that shareholders can second-guess the supervision of boards of those same decisions is inconsistent with decades of corporate governance jurisprudence. To make room for this duty within the duty of oversight or to create a separate duty to monitor financial risk would have the consequence of opening a side door to the questioning of all kinds of legal business decisions that have within them an element of business risk, political risk, currency risk, environmental risk, and legal risk. Though the oversight duty had before been cabined to holding directors responsible for the crimes and wrongful acts they should have known were being perpetuated by firm employees, the duty to monitor risk would subject legal but risky actions to judicial scrutiny. This eventuality would in effect reduce the business judgment rule to a nullity.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"80 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-08-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124114630","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":"Member Nominated Trustees and Corporate Governance","authors":"E. McGaughey","doi":"10.2139/SSRN.2569381","DOIUrl":"https://doi.org/10.2139/SSRN.2569381","url":null,"abstract":"A central issue in corporate governance is who elects the directors of FTSE100 or other large companies? Who gets the votes in our economy? This matters because, if unaccountable and in charge of 'other people's money', directors and institutional shareholders can be prone, as Adam Smith once wrote, to 'negligence and profusion': tending to make mistakes and unjustly enrich themselves at others' expense. This paper contends that member nominated trustees may play a crucial role in giving voice to people saving for retirement, who provide the largest source of corporate equity. First, it gives a brief history of where member nominated trustees came from. Second, it summarises how corporate governance works in the UK, and the place of trustees in it. Third, given the rapid economic and financial developments today, it points to a role that member nominated trustees might play in the future.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126865594","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":"Serão Os Acordos Parassociais Eficazes Perante a Sociedade? (Are Shareholders' Agreements Effective Towards the Company?)","authors":"Sofia Vale","doi":"10.2139/SSRN.2622511","DOIUrl":"https://doi.org/10.2139/SSRN.2622511","url":null,"abstract":"Portuguese Abstract: Este pequeno artigo analisa, de forma breve, a problematica da eficacia dos acordos parassociais, a luz do ordenamento juridico angolano.English Abstract: This short paper addresses the question of the effectiveness of shareholders' agreements, at the light of the Angolan law currently in force.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"388 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122780026","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":"Reforming Corporate Governance in Ethiopia: Appraisal of Competing Approaches","authors":"H. Tura","doi":"10.2139/ssrn.2279886","DOIUrl":"https://doi.org/10.2139/ssrn.2279886","url":null,"abstract":"This article assesses various approaches available to policy makers to reform the corporate governance in Ethiopia. It reviews competing models of corporate governance including shareholder model of common law and stakeholder model of European civil law; and the regulatory (formal or mandatory) and non-regulatory (informal or voluntary) approaches of corporate governance. It also critically analyses the suitability of such approaches to an emerging economy like Ethiopia. Although corporate governance is important for all types of business organizations including small and closely held companies in Ethiopia, this article is limited to publicly held share companies whose shares are dispersed among a number of shareholders which give rise to separation of ownership and control that in turn exposes them to agency cost.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"94 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-06-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130827843","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":"Horizontal and Vertical Regulatory Competition in EU Company Law: The Case of the European Private Company (SPE)","authors":"M. Eckardt, Wolfgang Kerber","doi":"10.2139/ssrn.2307427","DOIUrl":"https://doi.org/10.2139/ssrn.2307427","url":null,"abstract":"Since the Centros decision of the European Court of Justice in 1999, the regime of corporate laws in Europe has evolved in a fundamental way. Although it is rather incomplete and imperfect, a two-level system of corporate laws has emerged. It is characterized by a considerable degree of free choice of law. This opens up the possibility of horizontal regulatory competition between the company laws of the Member States. With the draft regulation on the European Private Company (SPE) an additional legal form tailored to the needs of small and medium-sized enterprises (SMEs) is proposed. We analyse whether the introduction of such a supranational European legal form for limited liability companies can be recommended from the perspective of the economic theory of legal federalism. To this end we present a general theoretical framework for studying centralisation/harmonisation vs. decentralisation of legal rules and regulations in regard to company laws within the European Union. Our analysis of the empirical evidence on horizontal regulatory competition as well as on the advantages and problems of the introduction of such an additional legal form for SMEs shows clearly that it might render many benefits without considerable disadvantages when compared with the existing situation of only horizontal competition between the legal forms of the Member States.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125083025","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}