Corporate Law: Corporate Governance Law eJournal最新文献

{"title":"Framed! The Failure of Traditional Agency Cost Explanations for Executive Pay Practices","authors":"Bryce Tingle, QC","doi":"10.29173/ALR782","DOIUrl":"https://doi.org/10.29173/ALR782","url":null,"abstract":"This is the second article in a series exploring the empirical evidence arising from the increasing use of certain executive compensation best practices. The first article, “How Good Are Our ‘Best Practices’ When It Comes to Executive Compensation?” summarizes research findings that these best practices are responsible for most of the growth in executive compensation, and lead to suboptimal corporate performance. It also suggests that the best practices currently in widespread use contradict practices that are often very helpful to directors in setting appropriate incentives in real world circumstances. This article goes on to argue that failures in executive compensation are the result, not of overly powerful CEOs confronting supine boards, but rather of directors and management earnestly striving to follow bad “best practices” promulgated by the corporate governance industry. This can be seen in: (1) the pattern of cause and effect distinguishable in the history of changing North American and British pay practices; (2) the link between these questionable pay practices and various measures of board independence and managerial weakness; and (3) the increasing use of these pay practices in circumstances of increased shareholder power. The most obvious solution is to increase board autonomy in setting pay. Regulatory steps for doing so lay close at hand, and in some cases have been discussed for years.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117278122","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":"Section 166(2) of the Companies Act 2013; Protection of Stakeholders or Primacy of Company","authors":"J. John","doi":"10.2139/ssrn.2885847","DOIUrl":"https://doi.org/10.2139/ssrn.2885847","url":null,"abstract":"The provision for protection of stakeholders is a mere eye wash and does not actually protect the interest of the Stakeholders. The provision 166(2) is cleverly worded and imposes a good faith duty of much higher magnitude towards the company while it only insists with the compliance of a best interest standard for the protection of the shareholders.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117011065","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":"Activist Stockholders, Corporate Governance Challenges, and Delaware Law","authors":"D. Parsons, Jason Tyler","doi":"10.4337/9781784711481.00033","DOIUrl":"https://doi.org/10.4337/9781784711481.00033","url":null,"abstract":"Over the last several years, the U.S. capital markets have witnessed a palpable rise in the number and influence of so-called “activist investors”, meaning large, institutional investment funds employing an investment strategy of acquiring relatively large blocs of stock in publicly traded companies and wielding their legal rights as stockholders to effect some sort of policy change within the company but without attempting to acquire control. This fact concomitantly has engendered a heated debate as to whether activists’ rising influence is normatively “good” or “bad”. One thing in particular that makes this debate so contentious is activism’s resistance to easy characterization: on the one hand, stockholder activists primarily wield only the legal rights that the corporation law (and specifically the Delaware General Corporation Law (the “DGCL”), as Delaware is the State of incorporation for the majority of the U.S.’s publicly traded corporations) confers on investors to protect their investments, but, on the other hand, activist campaigns may cause collateral damage to the companies involved, implicating boards of directors’ fiduciary duties to protect the enterprise against threats to the corporate bastion. Simply put, does stockholder activism merely represent “dissent within the forum” that Delaware law is designed to safeguard, or are activists the proverbial “barbarians at the gate” that Delaware law entrusts corporate directors to repel? Whatever the answer to these and related questions, the extent to which stockholder activism primarily implicates the legal rights and duties of investors and directors vis-a-vis each other means that the DGCL and the Delaware courts necessarily serve an important intermediary role. And yet, the public policy of the State of Delaware as to matters of corporate internal affairs is to enable private ordering and eschew “one size fits all” approaches to the innumerable ways in which market participants may choose to deploy their capital as efficiently as possible in their respective circumstances. In other words, the intent of Delaware corporation law — and the function of Delaware courts in interpreting and enforcing that law — is not to take a position on the outcome of the debate surrounding stockholder activism, but to safeguard the debate itself. In this chapter, we highlight through practical examples the Delaware courts’ core competency in deciding these sometimes vexing questions in context with the tools available.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-06-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125987630","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 House of Cards of Corporate Governance: Re-Thinking Transparency and Disclosure of Ownership","authors":"M. Fenwick, E. Vermeulen","doi":"10.2139/ssrn.2731628","DOIUrl":"https://doi.org/10.2139/ssrn.2731628","url":null,"abstract":"The entire architecture of contemporary corporate governance is reminiscent of a house of cards. This particular metaphor invokes two ideas that are important for understanding the current state of the debate surrounding corporate governance. Firstly, it captures the fragile facade of corporate governance today. There is no doubt that a house of cards is impressive, but the removal of one card reveals the fundamental weakness of the whole structure. Beneath the impressive outward facade of contemporary corporate governance, there are similar structural weaknesses.Secondly, the metaphor of a house of cards alludes to the recent Netflix TV show and the Machiavellian intrigues that surround the power-hungry Democratic congressman, and later President, Francis \"Frank\" Underwood, as portrayed by Kevin Spacey. His self-serving machinations seem designed to expose the gap between the glossy image and base reality of contemporary US politics. The pertinent point in this context is the way in which the discourse and practice of contemporary corporate governance contributes to the creation of a similar false reality surrounding business regulation.In order to clarify the metaphor in more detail, this paper focuses on the issues of \"disclosure, transparency and ownership\" as examples of how the current framework is broken. The problems with the current approach to transparency and ownership - namely more rules leading to a \"one-size-fits-all\" approach, herd behavior and standardization - are illustrative of some more general problems with the contemporary regulation of corporate governance. But rather than simply diagnose the problem with the existing framework, this paper develops an alternative regulatory approach that is more likely to be effective. The paper begins by reviewing contemporary discussion on ownership and control (II-III), before discussing the results of an extensive empirical survey of the annual reports of 280 companies in fourteen jurisdictions (IV) and introducing an alternative disclosure model for \"new generation firms\" (V-VI).","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129124629","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 German Law of and Experience with the Supervisory Board","authors":"K. Hopt","doi":"10.2139/SSRN.2722702","DOIUrl":"https://doi.org/10.2139/SSRN.2722702","url":null,"abstract":"Together with a number of other countries including China Germany has a two-tier board system, i.e. its stock corporation law provides for the division between the management board and the supervisory board. This is different from most other countries, for example the USA, the United Kingdom, Switzerland and others. Both board systems have their assets, yet in principle both fulfill adequately the task of control over management; there is no clear superiority of one of the two of them. The national board systems are highly path-dependent. Germany has had the supervisory board ever since the late 19th century when the state gave up its concession system, i.e. the approval and supervision of corporations by the state, and introduced a mandatory supervisory board to take over this task from the state. Germany strictly refuses to give shareholders the option to choose between the two systems. Labor codetermination in the supervisory board may be one of the reasons for this refusal. While European legislators have been rather prudent in regulating board matters, there has been a considerable de facto convergence between the two systems. Yet path-dependent divergences remain, as to Germany this is true particularly in respect of quasi-parity and full parity labor codetermination in the board of corporations, but also as regards stakeholder orientation and a codified law of groups of companies featuring corresponding board duties for both parent and subsidiary companies. The German Stock Corporation Act and the German Corporate Governance Code contain extensive provisions on both the management board and the supervisory board. The provisions on the supervisory board have been considerably reformed since the late 1990s. Today, German corporate governance under the two-tier board system is more or less in line with international good corporate governance. In Germany there are considerable controversies concerning (i) the diversity requirements of 2015, (ii) the definition of independence for supervisory board candidates, (iii) the pros and cons of mandatory quasi-parity and full-parity labor codetermination and (iv) the role of the nonbinding German Corporate Governance Code. The article pursues two goals: It informs a non- German audience on the regulation of the supervisory board in Germany, both by law and code, highlighting major current problems and controversies, and it undertakes a functional assessment of the experience with and the functioning of the supervisory board in a comparative perspective.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131099963","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":"Shareholder Value, Emerging Economies and the Need to Reconcile the Corporate Objective with Sustainable and Inclusive Goals","authors":"Vincenzo Bavoso","doi":"10.2139/ssrn.2719511","DOIUrl":"https://doi.org/10.2139/ssrn.2719511","url":null,"abstract":"The years preceding the wave of US corporate scandals at the turn of the century showed a high degree of convergence in corporate governance ideology and in its practice at the global level. The convergence corresponded with the perceived supremacy of the business model adopted in the US and UK based on shareholder value, on the growth of widely-held firms and the overall reliance on market mechanisms for the regulation of corporate governance. This convergence was due to a number of factors. These can be recognised firstly, with an intellectual dimension, which advanced the application of neoliberal principles in the area of corporate law and governance. This became particularly evident with the implementation of the Washington Consensus policies in areas of market liberalisation and corporate governance and with the direct influence on policymaking exerted by IMF and World Bank. Secondly, at a more practical level, the globalisation of Anglo-American legal, consulting and accounting services prompted the application of shareholder value to businesses in emerging economies, regardless of the underlying socio-economic reality.The sequence of corporate and financial scandals that occurred over the past fifteen years contributed to stir academic debates over the validity of the shareholder value paradigm. Despite much criticism however, the business model centred on the pursuit of share value for the benefit of stockholders has remained the guiding criteria of corporate success. Moreover, neoliberal policies have extended beyond corporate governance, to fundamental areas of market regulation, disregarding relevant institutional factors typical of most emerging economies, such as underdeveloped financial markets or inadequate property rights. This has resulted in institutional arrangements whereby corporate activities have promoted the interests of one constituency – shareholders – ahead of other key social and economic concerns which have been left lacking adequate protection. In the context of emerging economies this problem is accentuated, because the privatisation of large utilities and natural resources companies has attracted foreign investors whose interests are not naturally aligned with local and environmental priorities.This chapter reconceptualises the critique of shareholder value in light of the specific context of emerging economies. It focuses on the necessity to take account of the different nature of large corporations that, due to the nature of their activities and externalities, affect the interests of a wide range of societal interests. The chapter proposes a new institutional framework for the specific regulation of the corporate objective of large public firms.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"18 5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126002131","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":"Judicial Responsiveness to Valence Issues: An Event History Analysis of the Initial Sex Offender Registration and Notification (SORN) Laws","authors":"Bianca Easterly","doi":"10.1111/lapo.12046","DOIUrl":"https://doi.org/10.1111/lapo.12046","url":null,"abstract":"Under what conditions does judicial responsiveness to the public's policy preferences compromise the court's role as a countermajoritarian institution? Scholars have yet to examine whether and how quickly state appellate court justices respond to valence issues. This study investigates the relationship between retention elections and judicial responsiveness to the initial sex offender registration and notification (SORN) laws popularized in the 1990s. Findings show that judges who participated in nonpartisan retention elections exhibited greater democratic accountability by engaging in judicial review of SORN laws earlier than judges in other retention election systems. Valence issues create political challenges for nonpartisan judges who, like their counterparts in other retention systems, are expected to balance majoritarian interests with minority rights.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121816745","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":"Decentralized Governance Structures are Able to Handle CSR Induced Complexity Better","authors":"M. Pirson, S. Turnbull","doi":"10.2139/ssrn.2709413","DOIUrl":"https://doi.org/10.2139/ssrn.2709413","url":null,"abstract":"This article explores how both corporate governance and corporate social responsibility (CSR) can be improved by using insights from complexity theory. Complexity theory reveals that decentralized governance architecture is required for firms to absorb competently the increased intricacies, variety of variables, and objectives introduced by CSR. The current predominant form of centralized governance based on command-and-control hierarchies copes with complexities by reducing data inputs. This approach results in firms reducing their objectives and concerns about CSR. Firms with decentralized “network” form of governance architecture are used to illustrate how the data inputs of each manager can be reduced through the decomposition of decision making labor to improve the capability of the firm intelligently to absorb and manage complexity. Network governance also introduces a division of powers with stakeholders to facilitate shareholder interests obtaining the information and incentive to manage the enterprise to enhance both shareholder value and CSR.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124880984","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":"Activist Hedge Funds in a World of Board Independence: Creators or Destroyers of Long-Term Value?","authors":"Bernard S. Sharfman","doi":"10.2139/SSRN.2576408","DOIUrl":"https://doi.org/10.2139/SSRN.2576408","url":null,"abstract":"Numerous empirical studies have shown that hedge fund activism has led to enhanced returns to investors and increased firm performance. Nevertheless, leading figures in the corporate governance world have taken issue with these studies and have argued that hedge fund activism leads to long-term value destruction.In this article, it is argued that an activist hedge fund creates long-term value by sending affirming signals to the board of directors (Board) that its executive management team may be making inefficient decisions and providing recommendations on how the company should proceed in light of these inefficiencies. These recommendations require the Board to review and question the direction executive management is taking the company and then choosing which path the company should take, the one recommended by executive management, the one recommended by the activist hedge fund or a combination of both. Critical to this argument is the existence of a Board that can act as an independent arbitrator in deciding whose recommendations should be followed.In addition, the Article discusses the implications for shareholder voting when an activist hedge fund interacts with an independent Board. Finally, an explanation is given for why activist hedge funds do not provide recommendations that involve long-term investment.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"2016 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125893729","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 Global Sport: Hybridity and the Challenges of Pursuing Transparency","authors":"Kathryn Henne","doi":"10.1111/lapo.12044","DOIUrl":"https://doi.org/10.1111/lapo.12044","url":null,"abstract":"In light of recent controversies in global sport, this article surveys the challenges of pursuing transparency in this particular domain of governance. Although corruption in sport is attracting more scholarly attention, there remains little sociolegal research that reflects critically on corporate governance in sport and its implications. This article outlines current calls for greater transparency in global sport and considers how capitalistic underpinnings and distinct hybrid arrangements complicate the task of transparency. It concludes by reflecting on how insights from studies of regulatory capitalism can inform alternative approaches to transparency and accountability in global sport.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131275356","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}