Tulane Journal of International and Comparative Law最新文献

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The Function of Corporate Law and the Effects of Reincorporations in the U.S. and the E.U. 美国和欧盟公司法的功能与公司重组的效果

Tulane Journal of International and Comparative Law Pub Date : 2011-08-29 DOI: 10.2139/SSRN.1919231

F. Mucciarelli

{"title":"The Function of Corporate Law and the Effects of Reincorporations in the U.S. and the E.U.","authors":"F. Mucciarelli","doi":"10.2139/SSRN.1919231","DOIUrl":"https://doi.org/10.2139/SSRN.1919231","url":null,"abstract":"In the U.S., corporations can be incorporated in any of the 50 states and can “reincorporate” afterwards in any other state. However, the competence of the state where a company is incorporated is limited: on the one hand, it is restricted by federal laws and, on the other hand, it regulates only the “internal affairs” of corporate activities. Consequently, in the U.S. reincorporations are a relatively easy task, since they only shift rules that address the shareholders - board relation, while creditors and other stakeholders are not affected.In the E.U., we find a partially similar scenario. In the last decade, the European Court of Justice has liberalized initial incorporations and in 2005 the cross-border directive has opened the doors to freedom of reincorporation from one member state to another. In the E.U., reincorporations have a much different impact than on the other side of the Atlantic, since the agency problems between shareholders and the board are bundled with the agency problems between shareholders and creditors, all being in the competence of the member state of incorporation. In the E.U., therefore, any change of the applicable corporate law risks to jeopardize creditors. Sophisticated creditors will discount this risk from the credit rate or will protect themselves through specific covenant, but non-sophisticated creditors will bear entirely the risk of opportunistic reincorporations. For this reason, many E.U. member states provide mechanisms for creditors’ protection in case of reincorporation, often by requiring the debtor to give a security or to pay the debts that are not yet due. These mechanisms are aimed at avoiding negative externalities, yet they make reincorporations more expensive and will impede a certain number of efficient transactions.","PeriodicalId":254312,"journal":{"name":"Tulane Journal of International and Comparative Law","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133550755","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}

引用次数: 10

Legal Hybridity in the Philippines: Lessons in Legal Pluralism from Mindanao and the Sulu Archipelago 菲律宾的法律混杂:来自棉兰老岛和苏禄群岛的法律多元主义教训

Tulane Journal of International and Comparative Law Pub Date : 2009-10-09 DOI: 10.2139/SSRN.1486169

Justin G. Holbrook

{"title":"Legal Hybridity in the Philippines: Lessons in Legal Pluralism from Mindanao and the Sulu Archipelago","authors":"Justin G. Holbrook","doi":"10.2139/SSRN.1486169","DOIUrl":"https://doi.org/10.2139/SSRN.1486169","url":null,"abstract":"From Kurds in Afghanistan to Muslims in the Philippines, we live in a world in which normative obligations do not always follow political boundaries. For a variety of political, economic, and social reasons, people sometimes find themselves residents of a state they neither helped create nor voluntarily joined. What allegiance do such people owe to the legal systems of the states to which they belong? Should they be permitted to adopt and follow proprietary legal codes that conform to cultural norms but exist distinct from national jurisprudential schemes? As nations throughout the world struggle to find plural solutions to normative conflict, these questions are of vital importance to subnational and supranational legal regimes. In this Article, I explore these issues by drawing on legal pluralism as a methodology to analyze subnational normative conflict. I do so by engaging in a case study of the Philippines, a country which has been a hotbed of conflict for more than 400 years. I first address the mechanisms employed by Spanish and American colonizers in responding to normative conflict in Mindanao and the Sulu Archipelago. I then proceed to a discussion of the steps taken by the Philippine government to formally recognize Muslim normative obligations, including the adoption of Presidential Decree 1083, the Muslim Code of Personal Laws. Finally, I review the Philippine government’s approach to legal hybridity in the context of four practices identified by Paul Schiff Berman in Global Legal Pluralism: dialectical discourse, margins of appreciation, jurisdictional redundancy, and limited autonomy regimes. I conclude by suggesting that the Philippine government’s approach, though less than fully realized, models the possible benefits of pluralism in a normatively complex and contentious hybrid society.","PeriodicalId":254312,"journal":{"name":"Tulane Journal of International and Comparative Law","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130457164","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}

引用次数: 6