CGN: Governance Law & Arrangements by Subject Matter (Topic)最新文献

{"title":"Are M&A Lawyers Really Better?","authors":"Stephen Choi, G. Gulati, R. Scott","doi":"10.2139/ssrn.3653463","DOIUrl":"https://doi.org/10.2139/ssrn.3653463","url":null,"abstract":"This article studies the impact of exogenous legal change on whether and how lawyers across four different deal types revise their contracts’ governing law clauses in order to solve the problem that the legal change created. The governing law clause is present in practically every contract across a wide range of industries and, in particular, it appears in deals as disparate as private equity M&A transactions and sovereign bond issuances. Properly drafted, the clause increases the ex ante economic value of the contract to both parties by reducing uncertainty and litigation risk. We posit that different levels of agency costs are the motivating factors that influence beneficial innovations in governing law clauses as well as their mirror opposite, costly encrustations. Our data show that lawyers who draft private equity M&A deals pay more attention to the deal terms than lawyers producing corporate and sovereign bond contracts. Because agency costs are low in the private equity setting, we observe significantly more innovation in private equity deals as compared to sovereign and corporate bond transactions where the agency problems of drafting lawyers are much greater. More surprising, we also find that contracts drafted by private equity M&A lawyers have more obsolete and encrusted terms than the contracts of the other deal types. Our conjecture is that the lawyers' dominant drafting strategy is to find examples of a desired term in other documents and import that language verbatim into the contract together with other redundant and obsolete terms including, on occasion, terms that may harm the clients' interests if retained in the contract.","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"159 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122553691","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":"Hidden Agendas in Shareholder Voting","authors":"S. Hirst, Adriana Z. Robertson","doi":"10.2139/ssrn.3833304","DOIUrl":"https://doi.org/10.2139/ssrn.3833304","url":null,"abstract":"Nothing in either corporate or securities law requires companies to notify investors what they will be voting on before the record date for the meeting. We show that, overwhelmingly, they do not. The result is “hidden agendas:” in 88% of shareholder votes, investors cannot find out what they will be voting on before the record date. This poses an especially serious problem for investors who engage in securities lending: they must decide whether the expected benefit of voting exceeds the expected benefit of continuing to lend their shares (or making them available for lending) without knowing what they will be voting on. All investors who engage in share lending are affected, but the problem is particularly acute for large investment managers that have fiduciary duties related to voting. At present, they must discharge these duties in the dark. We propose a straightforward solution: an amendment to the Securities and Exchange Commission’s proxy rules requiring public companies to file proxy statements at least five days before the record date for the meeting. This simple change would give investors the information they need to make an informed decision about whether to retain the right to vote or not. If we believe that shareholder voting is important, and that investment managers and others should decide whether to vote, we should give them the information they need to do so.","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"68 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115799615","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":"A Right For Retirement: Unconscionable Contracts, The Right (Not) to Associate, and Citizens United","authors":"P. Miller","doi":"10.2139/ssrn.3709509","DOIUrl":"https://doi.org/10.2139/ssrn.3709509","url":null,"abstract":"The article explores the consequences of the Citizens United through the lens of the equity doctrine of unconscionable contracts. This expands on the argument regarding shareholders’ Right of Association addressed in the Citizens United decision I create a hypothetical around the contracts used by companies that manage retirement funds. My argument is that a consequence of Citizens United is that these contracts now include a person giving up their Constitutional Right Not to Associate with a corporation’s political activities. Such a price, and the fact that it is not revealed as a price, makes such contracts unconscionable. I conclude the article with a twist: the Constitution, viewed as a social contract, has been made unconscionable by Supreme Court cases such as Citizens United.","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"55 37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129803724","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":"Will Nasdaq's Diversity Rules Harm Investors?","authors":"J. Fried","doi":"10.2139/SSRN.3812642","DOIUrl":"https://doi.org/10.2139/SSRN.3812642","url":null,"abstract":"In December 2020, Nasdaq asked the Securities and Exchange Commission to approve new diversity rules. The aim is for most Nasdaq-listed firms to have at least one director self-identifying as female and another self-identifying as an underrepresented minority or LGBTQ+. While Nasdaq claims these rules will benefit investors, the empirical evidence provides little support for the claim that gender or ethnic diversity in the boardroom increases shareholder value. In fact, rigorous scholarship—much of it by leading female economists—suggests that increasing board diversity can actually lead to lower share prices. Adoption of Nasdaq’s proposed rules would thus generate substantial risks for investors.","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"62 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125885608","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":"A Trans-Atlantic Doctrinal Orientation Made Concrete: Ohio’s First 'Modern' Business Corporation Act (1927)","authors":"E. Steiner","doi":"10.2139/ssrn.3761336","DOIUrl":"https://doi.org/10.2139/ssrn.3761336","url":null,"abstract":"Ohio’s corporation laws were suboptimal in the 1920s. The statutory framework was jerry-built, legislators reacting in haste to address the latest corporate scandal or controversy, with no doctrinal foundation other than a residual (if receding) animosity to corporations, corporations being associated with special privileges and monopoly. Yet the state’s economy in the Second Industrial Revolution was robust and Ohio c. 1920 was politically ascendant (both major parties nominating Ohioans as their presidential standardbearers). <br><br>Ohio’s early twentieth-century corporate law reformers believed the task at hand was not to enter into a “race” to attract corporate charters - - they were adamant about the dangers of “chartermongering” - - but to allow Ohio-based business persons active in the state’s robust economy to use a flexible, enabling set of corporate statutes to arrange the legal aspects of their enterprises, rather than chartering in some other jurisdiction. If Ohio was competing with Delaware and other “charter mongering” states, it was a defensive competition. The reformers’ intention was to have a state other than Ohio be the state “whose corporation laws are [most] unpopular with business interests.”<br><br>In 1926, after years of calls for corporation law reform, the Ohio State Bar Association appointed a special committee to effect reform. That five person special committee was comprised of prominent corporate practitioners from around the state, two of whom had written treatises on Ohio corporation law and one of whom had been Chief Justice of the Ohio Supreme Court. Two prominent academic legal experts were engaged as consultants to the special committee, Professor Robert Stevens of Cornell Law School, principal draftsperson to the Uniform Business Corporation Act, and A.A. Berle, Jr., at that time a corporate finance practitioner in New York’s innovative financial markets and sometime Harvard Business School adjunct professor who was also a prolific author in legal academic and other journals. Harvard’s William Z. Ripley, of Wall Street and Main Street fame, also assisted the special committee. <br><br>The special committee anchored their Ohio General Corporation Act of 1927 (the “1927 act”) in a contractarian theory of the corporation. At this point in their respective careers, Stevens and Berle were contractarians. While the special committee borrowed from the corporation laws of several American jurisdictions, particularly New York, Florida and Maryland, in crafting the 1927 act, its most significant and, to the legal historian, striking doctrinal borrowings were from the English Companies Act. Reflecting a trans-Atlantic doctrinal orientation, the special committee expressly modelled the 1927 act on the then-effective English Companies Act. As a result, “private ordering” of the sort then permitted under English company law was to be made available to Ohio businesspersons, entrepreneurs and their legal advisors. <br><br>Pr","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131878178","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":"CSR in Times of COVID-19: Notifications Issued by the Ministry of Corporate Affairs With Regard to Schedule VII of the Companies Act, 2013","authors":"Aniket Raj","doi":"10.2139/SSRN.3759989","DOIUrl":"https://doi.org/10.2139/SSRN.3759989","url":null,"abstract":"The global spread of the COVID-19 pandemic and the complete lockdown in India to prevent its spread has severely impacted both social and economic aspects of life and has also fueled the depression in India’s economy. Unemployment is highest in recent decades, and the worst hit are the underprivileged and the unorganized sector workers. During these testing times, the efforts and policies of the State are not enough to curb the plethora of problems, the assistance of corporate giants in the attempt to emancipate the situation is needed now more than ever. In its pursuit to restore social welfare and in the interests of magnum bonum, the Government of India through the Ministry of Corporate Affairs has released several notifications with respect to Schedule VII of the Companies Act, 2013 to facilitate the participation of corporations in improving the COVID-19 situation.","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"97 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134109680","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":"Restructuring vs. Bankruptcy","authors":"J. Donaldson, E. Morrison, Giorgia Piacentino, Xiaocong Yu","doi":"10.2139/ssrn.3698161","DOIUrl":"https://doi.org/10.2139/ssrn.3698161","url":null,"abstract":"We develop a model of a firm in financial distress. Distress can be mitigated by filing for bankruptcy, which is costly, or preempted by restructuring, which is impeded by a collective action problem. We find that bankruptcy and restructuring are complements, not substitutes: Reducing bankruptcy costs facilitates restructuring, rather than crowding it out. And so does making bankruptcy more debtor-friendly, under a condition that seems likely to hold now in the United States. The model gives new perspectives on current relief policies (e.g., subsidized loans to firms in bankruptcy) and on long-standing legal debates (e.g., the efficiency of the absolute priority rule).","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114757191","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 Jensen and Meckling Really Said About the Public Company","authors":"B. Cheffins","doi":"10.2139/ssrn.3679405","DOIUrl":"https://doi.org/10.2139/ssrn.3679405","url":null,"abstract":"Accepted views of a classic academic work can quite readily distort the original text. Michael Jensen and William Meckling’s widely cited 1976 article “Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure” exemplifies the pattern. The article has been cited as a key inspiration for various significant governance changes affecting publicly traded firms, including moving the maximization of shareholder value to the top of the managerial priority list. Jensen and Meckling in fact had little to say about altering the corporate landscape, in substantial measure because they were favorably disposed toward the public company. This chapter canvasses the wide gap between what Jensen and Meckling supposedly said about the public company and what they actually said and explains how this discrepancy occurred.","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"70 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126170087","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":"ABB India Corporate Restructuring Process through Slump Sale","authors":"Kaushik Ghosh, M. Mukhopadhyay","doi":"10.2139/ssrn.3649459","DOIUrl":"https://doi.org/10.2139/ssrn.3649459","url":null,"abstract":"This case study discusses the corporate restructuring of ABB India Limited with Hitachi. The case delves into the details about the restructuring, restructuring motives and the benefits of the restructuring. Modalities of the deal with projected synergy gain has also been explored and explained via a typical slump sale process. We conclude the case using a brand versus burden analysis by summarizing post-deal market reaction.","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130138249","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":"A Short Comparative Study of Corporate Governance in European National Legal Systems","authors":"Ovidiu Ioan Dumitru, N. Vavură","doi":"10.47577/tssj.v10i1.1192","DOIUrl":"https://doi.org/10.47577/tssj.v10i1.1192","url":null,"abstract":"Corporate Governance has developed immensely in the last decades mainly due to the negative effects on shareholders’s of management decisions leading to a continuous conflict to be solved by the policymakers and academics. After the publication of the Cadbury Report, we noticed an increase interest in drafting corporate governance codes, the American and European legislators being the most active, but recent financial crisis reduced confidence in the results of corporate governance quality, some authors asserting even that the poor implementation of the policies in the area have leaded to the crisis. This paper wants to show the diversity of corporate governance standards present today in different national legal systems, by comparing its main elements like protection of shareholders and stakeholders’ interests,  board structures and operations and control, oversight and reporting.","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133659169","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}