CGN: Corporate Law Including Merger & Acquisitions Law (Sub-Topic)最新文献

{"title":"Takeover Regulation in China: Striking a Balance between Takeover Contestability and Shareholder Protection","authors":"(Robin) Hui Huang, Juan Chen","doi":"10.1017/9781108163965.008","DOIUrl":"https://doi.org/10.1017/9781108163965.008","url":null,"abstract":"The paper conducts a concise yet comprehensive examination of the Chinese regulatory regime for takeovers of listed companies, covering important rules such as the mandatory bid rule, tender offer rules, disclosure of substantial shareholding, and takeover defences. In evaluating the Chinese takeover law, particularly the amendments made in 2014, the paper adopts a comparative approach, while takes into consideration China’s local conditions. The paper argues that a key policy goal of Chinese takeover law is to facilitate the use of takeovers to achieve industrial upgrading and economic restructuring, and that it is important to strike a proper balance between takeover contestability and shareholder protection.","PeriodicalId":204227,"journal":{"name":"CGN: Corporate Law Including Merger & Acquisitions Law (Sub-Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129094423","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":"Merger Remedies and the Undersupply of Economic Research","authors":"F. Osiński","doi":"10.2139/ssrn.3043192","DOIUrl":"https://doi.org/10.2139/ssrn.3043192","url":null,"abstract":"In the 14 years since this quote, the empirical study of merger remedies has seen little advancement despite frequent use of remedies in practice, significant policy interest, and a treasure trove of potential research topics. This article first describes the use of remedies in U.S. merger policy, including a summary of the FTC’s recent remedy study. It then provides a review of empirical literature addressing remedy effectiveness, with only two modern retrospectives of domestic merger remedies. The article concludes by highlighting areas where economic research could further advance the study of merger remedies.","PeriodicalId":204227,"journal":{"name":"CGN: Corporate Law Including Merger & Acquisitions Law (Sub-Topic)","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123379655","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 Inadequacy of Existing Concepts of Corporate Group Liability and New Doctrines","authors":"M. Manfredi","doi":"10.2139/ssrn.3030101","DOIUrl":"https://doi.org/10.2139/ssrn.3030101","url":null,"abstract":"Since the end of the 19th century the Salomon principle has been at the heart of English company law. The facts in Salomon v Salomon & Co Ltd (1897) are well known and need not to be repeated here. In essence, this principle provides that, upon incorporation, a company becomes a separate legal entity which, in the eyes of the law, is not different from a human being. A corporation has rights, duties and obligations of its own which are different from those of its incorporators. As a result, companies can hold properties, they can contract in their own name, they can sue and be sued and, more importantly, companies can be liable for their own debts. The latter provides the justification for limited liability. This principle was conceived by the House of Lords in order to allow a sole trader (Mr Salomon) to avail himself of the benefits of limited liability by conducting business activities through a corporation. The House of Lords did not realise what the consequences of their decision would be in the following decades because there were not corporate groups at that time. During the course of the last century, the principle of separate corporate personality was applied to groups of companies in order to allow a parent company to avail itself of limited liability in relation to the activities of its subsidiaries just like Mr Salomon did in relation to the activities of his own company. Whether the House of Lords intended to give rise to such an outcome remains doubtful. Nevertheless, limited liability has benefitted our global economy as no other legal fiction has ever done and it has been described as \"the corporation's most precious characteristic\". On the other hand, it is often claimed that this regime encourages excessive risk-taking in the running of the company's affairs. After all, \"the riskier the more profitable\" is a basic rule in investment activities. In such scenario, it is not hard to envisage a potential danger of moral hazard. The business owners lose nothing when things go wrong but become richer if the risk does not materialise. As a result, limited liability may give rise to unfairness particularly in cases involving tortious liability for personal injuries by externalising risks and costs that ought to be internalised by the corporation as a better risk taker and cost bearer. Liabilities can be avoided by interposing a subsidiary or, more commonly, different layers of subsidiaries between the injured party and the decision-making centre, be it a parent company or its controlling shareholders. The situation is further exacerbated when it comes to multinational groups. Not only will the ultimate controller be protected by the corporate veil but also by a jurisdictional veil. The combination of corporate and jurisdictional veils makes the attribution of liability to the parent in the home country almost impossible. The difficulties mentioned above are graphically illustrated by the seminal case Adams v Cape Industries Plc (1990). ","PeriodicalId":204227,"journal":{"name":"CGN: Corporate Law Including Merger & Acquisitions Law (Sub-Topic)","volume":"74 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122188135","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 Corporate Personhood Two-Step","authors":"Carliss N. Chatman","doi":"10.2139/ssrn.2992275","DOIUrl":"https://doi.org/10.2139/ssrn.2992275","url":null,"abstract":"The corporation cannot exist without founders complying explicitly with the requirements for incorporation provided by state statutes. The artificial entity theory acknowledges that a corporation does not exist until its founders meet all requirements for corporate formation imposed by the state. It also acknowledges that while human beings can do business collectively, contracting for many elements of the corporation without any state intervention, to take full advantage of the corporate form parties must comply with state requirements for formation. A corporation is also, by design, a new and distinct entity divorced from its people. The real entity theory acknowledges that once a corporation is formed, it has rights wholly separate from its founders that belong only to the corporation itself. By merging the artificial entity and real entity theories, the Court may properly define corporate rights. \u0000Because of the dual nature of the corporation, corporate personhood should be a question of fact, not a matter of law. Corporate personhood requires weighing the evidence and making a case by case determination based on the choices made at formation and how the corporation operates. Determining a corporation’s rights requires the Court to engage in a two-step analysis that gives deference to this duality. The Court must first rely on how the corporation is defined by statute to determine whether it is required to acknowledge the existence of the right for the corporation itself, then decide whether state action infringes on that right if it exists. Problems arise in corporate personhood jurisprudence when the courts give rights to corporations that states, legislatures, and founders did not intend. \u0000When granting corporations constitutional rights based on the rights of founders and shareholders in the aggregate, the Court is ignoring the parameters of the state law definition of the corporation, as well as the affirmative choices of corporate founders who deliberately choose the corporation over other forms of business. Citizens United and Hobby Lobby are recent examples of this dismissal of corporate statutes for the sake of protecting the rights of the people who make up the corporation. Contrary to the commentary of the Court in these decisions, the corporation is not designed or intended to be an association of citizens. Engaging in a two-step analysis shows that it is impossible for a corporation to be an association of citizens.","PeriodicalId":204227,"journal":{"name":"CGN: Corporate Law Including Merger & Acquisitions Law (Sub-Topic)","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127710332","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":"Supervisory Challenges in the Face of Harmful But Legal Corporate Behavior","authors":"Aute Kasdorp","doi":"10.2139/ssrn.2851400","DOIUrl":"https://doi.org/10.2139/ssrn.2851400","url":null,"abstract":"At least seventeen out of twenty-three Dutch regulatory agencies avert harmful but legal corporate behavior through regulatory interventions beyond the law. Interviewed regulators struggle to position themselves in the ensuing cat-and-mouse game, broker adverse interests, and uphold legitimacy. This paper explores these core challenges, regulators’ supervision strategies to cope with these challenges, as well as factors that may influence their stance. The paper proposes a dual level game viewpoint to interpret the resulting extrajudicial interaction between regulators and firms.","PeriodicalId":204227,"journal":{"name":"CGN: Corporate Law Including Merger & Acquisitions Law (Sub-Topic)","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124444328","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 Transplant and Adaption of Company Law in Colonial Victoria 1850-1900","authors":"P. Lipton","doi":"10.2139/SSRN.2783157","DOIUrl":"https://doi.org/10.2139/SSRN.2783157","url":null,"abstract":"This paper deals with the transplant and adaption of company law in the Australian colony of Victoria during the second half of the nineteenth century. It seeks to place the development of company law in Victoria in its economic and institutional contexts so as to inform a consideration of the circumstances that are conducive to successful legal transplants. The gold mining industry was a particularly important driver of economic development and prosperity. However the availability of resources may be either a blessing or curse. In the case of nineteenth century Victoria, the extraction of gold was a decided blessing due to a number of favourable institutional factors including the successful transplant of English company law which facilitated the formation of gold mining companies and the necessary large-scale investment. An important factor in this success was the preparedness of the legislature to respond to the needs of the wider business community and especially the gold mining industry. This paper then examines some of the significant innovations that assisted the gold mining industry, in particular the introduction of the no liability company and other later investor protection innovations that modernised company law.","PeriodicalId":204227,"journal":{"name":"CGN: Corporate Law Including Merger & Acquisitions Law (Sub-Topic)","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130710251","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":"Firms and Fiduciaries","authors":"D. Smith","doi":"10.1093/acprof:oso/9780198779193.003.0013","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780198779193.003.0013","url":null,"abstract":"Economists who study the theory of the firm strive to draw a line between firms and markets. This line corresponds to the line lawyers draw between fiduciary and nonfiduciary relationships. The Critical Resource Theory (“CRT”) of fiduciary relationships is motivated by the property-rights theory of the firm. CRT holds that the distinguishing feature of fiduciary relationships is that “a fiduciary exercises discretion with respect to a critical resource belonging to the beneficiary, whereas most contracting parties exercise discretion only with respect to their own performance under the contract.”In this chapter, I refine the description of “resources” under CRT using the property-rights theory of the firm and the resource-based view of the firm and extend the analysis of CRT to two important implications flowing from the basic structural insight: (1) while some features of fiduciary relationships are traceable to the logic of contract and some features are traceable to the logic of property, fiduciary relationships are unique hybrid institutions; and (2) the distinctive duty of loyalty that is imposed on fiduciary relationships is designed to protect the beneficiary’s property-like interest in critical resources.","PeriodicalId":204227,"journal":{"name":"CGN: Corporate Law Including Merger & Acquisitions Law (Sub-Topic)","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115455138","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 Law in Colonial India: Rise and Demise of the Managing Agency System","authors":"Umakanth Varottil","doi":"10.2139/ssrn.2708963","DOIUrl":"https://doi.org/10.2139/ssrn.2708963","url":null,"abstract":"This paper focuses on the managing agency system, a peculiar type of corporate governance arrangement that emanated in India during the colonial period. Under this system, a managing agent (either an individual, partnership firm or company) would be appointed to manage one or more joint stock companies. The managing agent would also hold shares in the managed companies and control their boards of directors. While this system was introduced in the early part of the nineteenth century to facilitate trade and investment by British businesses in India, it was also adopted by Indian businesses. Over a period of time, its advantages were overshadowed by mismanagement by the agents and consequent abuse of the shareholders of the managed companies. The legal response was ineffective as the colonial government refused to recognise or rein in managing agents for nearly a century from its inception. It is only in 1936 that restrictions were imposed. Following India’s independence in 1947, the restrictions were tightened further before the system itself was abolished in 1970. This paper offers an analysis of the system using a corporate law and governance framework, and finds the existence of several institutional, economic, political and social factors that led to its emergence and disappearance.","PeriodicalId":204227,"journal":{"name":"CGN: Corporate Law Including Merger & Acquisitions Law (Sub-Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129628951","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 Rights and Organizational Neutrality","authors":"Vincent S. J. Buccola","doi":"10.2139/SSRN.2569305","DOIUrl":"https://doi.org/10.2139/SSRN.2569305","url":null,"abstract":"Public clamor over the Supreme Court’s recent decisions in Citizens United and Hobby Lobby can be explained at least in part by the absence of any consistent rationale in corporate-rights adjudication. As many scholars have noted, the Court has never supplied a coherent explanation of corporate rights — where they come from and how to discern their existence and limits. Group rights derive from individual rights, we are told, but little other guidance is forthcoming. As a consequence each new judgment is open to the charge of unprincipled fiat.This article contends that, despite its opacity, the case law implies a deep and tractable logic. In particular, the article argues that the corporate-rights jurisprudence reflects an unstated principle of “organizational neutrality.” Constitutional rights are ascribed to corporations such that entrepreneurs are neither rewarded nor punished for choosing the corporate form over other modes of coordination (for example contract, proprietorship, or partnership). That is, the Constitution is presumed neutral as between the form of governance through which entrepreneurs organize productive activity. The same neutrality principle explains the corporate-rights jurisprudence in statutory cases, albeit as a presumption about Congress’s meaning rather than a binding constraint on its authority.Moreover, insights from transaction-cost economics supply a ready justification of the neutrality principle. Entrepreneurs choose their governance mechanisms — ranging from the more hierarchical to the more market-mediated — with an eye to minimizing the social costs of production. A group-rights jurisprudence favoring one or another mode of organization would bias this choice and encourage marginal enterprises to pick wasteful governance structures. Critiques of the Court’s corporate-rights jurisprudence ought therefore to explain why a non-neutral rule is, in a particular context, worth the measure of inefficiency it is apt to introduce.","PeriodicalId":204227,"journal":{"name":"CGN: Corporate Law Including Merger & Acquisitions Law (Sub-Topic)","volume":"77 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134464071","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":"Executarea silita a pactelor intre asociati in dreptul român (Forced execution of shareholders agreements according to Romanian law)","authors":"D. Şandru","doi":"10.2139/SSRN.2689566","DOIUrl":"https://doi.org/10.2139/SSRN.2689566","url":null,"abstract":"Romanian Abstract: Organizarea si funcţionarea unei societăţi este limitată de legislaţie, ordinea publică si bunele moravuri. Inţelegerile (pactele) intre asociaţi sunt fundamentale nu doar pentru existenţa societăţii dar si pentru cooperarea si găsirea punctului de interes comun intre asociaţi. Cele mai multe pacte intre asociaţi nu au caracter public, iar forma care ar institui un titlu executoriu ar putea fi un act autentic. Aceste tensiuni - public/ascuns, executare voluntară/ executare silită - sunt premise ale unei atente negocieri ale pactelor pentru ca acestea să devină parte din viaţa societăţii. Lucrarea are un pronunţat caracter descriptiv, de informare cu privire la nuanţele dobândite de experienţe ale instanţelor străine, de soluţiile doctrinare de drept comparat, elemente care sunt avute in vedere pentru o eventuala aplicare in cadrul sistemului juridic românesc.English Abstract: The organization and functioning of a company is curtailed by law, public policy and morality. The agreements between partners are essential not only company’s existence, but also as it fosters cooperation between shareholders. Most shareholders agreements are not public in nature, and the form liable to amount to an enforcement title could be an authentic instrument. These tensions – public/secret, voluntary compliance /forced execution - are prerequisites for a careful bargaining of agreements in order for them to become part of the company life. The article is has a descriptive nature, aiming at informing on various fine distinctions acquired from the experience of foreign courts and comparative law, those being able to be employed within the Romanian legal system.","PeriodicalId":204227,"journal":{"name":"CGN: Corporate Law Including Merger & Acquisitions Law (Sub-Topic)","volume":"424 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-08-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132872648","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}