Berkeley Business Law Journal最新文献

{"title":"The Social Responsibility of Business Is Not Social Responsibility: Assume That There Are No Angels and Allow the Free Market's Touch of Heaven","authors":"M. Jennings","doi":"10.15779/Z38JM23G6D","DOIUrl":"https://doi.org/10.15779/Z38JM23G6D","url":null,"abstract":"","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-09-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120870072","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":"Piercing the Corporate Veil: Historical, Theoretical and Comparative Perspectives","authors":"C. Tan, Jiangyu Wang, C. Hofmann","doi":"10.2139/SSRN.3254130","DOIUrl":"https://doi.org/10.2139/SSRN.3254130","url":null,"abstract":"The concept of a company as a separate entity from its shareholders is well known and recognized in many common law and civil law jurisdictions. Generally, it is regarded as a fundamental aspect of corporate law and for this reason courts are loath to depart from it. Nevertheless, the principle of separate personality is not absolute and in both common law and civil law countries the courts have the power to depart from it. Where this occurs, it is often said that the courts “pierce” or “lift” the corporate veil. This will usually, but not inevitably, lead to liability being imposed on another person, perhaps in addition to the corporate vehicle. This paper aims to compare and critically examine the circumstances under which veil piercing takes place against the objectives of incorporation. The countries examined are England, Singapore and the United States (US) which are common law jurisdictions, as well as the civil law countries of China and Germany. The main purpose of this comparison is to offer a reasonably comprehensive and thorough examination of how the principle of veil piercing, which has been formally adopted either through case law or legislation, is doctrinally applied by the courts in these jurisdictions. The functional method in comparative law is inevitably employed in this paper, but we also consider other aspects. It will be seen that there are many parallels between the countries being compared, whether common law or civil law, in part because the historical circumstances leading to the rise of corporate personality were very similar, and also because the corporations laws in Asian countries referred to in this paper are legal transplants. The paper argues that in almost all the jurisdictions examined, some cases of veil piercing ought not to have been decided as such because doing so gives rise to suboptimal outcomes. Instead other legal tools should have been used particularly those in the law of torts. We believe this paper fills a gap in the literature of comparative corporate law as the doctrine of veil piercing has been frequently misapplied and there is also a paucity of academic commentary in this area.","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-09-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129922463","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":"Effectively Discharging Fiduciary Duties in IP-Rich M&A Transactions","authors":"E. Causevic, Ian Mcclure","doi":"10.15779/Z389Z90B5W","DOIUrl":"https://doi.org/10.15779/Z389Z90B5W","url":null,"abstract":"Introduction ............................................................................................... 88 I.Value of IP in Technology Companies and the Economy ...................... 91 A. Patent-Only or Patent-Driven Transactions .............................. 93 B. Identifying the Presence of and Estimating the Financial Value of Non-core IP ....................................................................... 96 II.Misconceptions About Companies’ IP .................................................. 98 A. Misconception: All patents owned by the company are core— needed to cover and protect the company’s products and services (or they are all needed for defensive purposes against competitors) ........................................................................... 98 B. Misconception: No operating company would want to buy our non-core IP ............................................................................. 98 C. Misconception: Patents (core and non-core) have the same value to the M&A buyer as they do to the seller, and the potential buyer will pay for that value ................................. 100 D. Misconception: Management will tell the directors if the company’s non-core IP has material value .......................... 101 E. Misconception: Our outside patent counsel will alert us about who infringes our non-core IP ............................................. 102 F. Misconception: Our advisors will value our core and non-core IP as part of the M&A process ............................................. 104 G. Misconception: Our investment bankers will consider strategic IP alternatives ...................................................................... 105","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-07-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124569812","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 Enigma of Hostile Takeovers in Japan: Bidder Beware","authors":"Dan W. Puchniak, Masafumi Nakahigashi","doi":"10.2139/SSRN.2830286","DOIUrl":"https://doi.org/10.2139/SSRN.2830286","url":null,"abstract":"For over two decades, Japan has had all of the essential elements that leading academics and sophisticated investors have assumed to be sufficient for a country to develop an active market for hostile takeovers (i.e., dispersed shareholder ownership, depressed share values, and a United Kingdom or United States inspired regulatory framework). This has not gone unnoticed. For decades, leading academics and prestigious pundits have repeatedly predicted the imminent arrival of a wave of successful hostile takeovers in Japan. Based on the same prediction, but with much higher stakes, sophisticated investors have risked billions of dollars. History has consistently proven this prediction wrong — leaving a cadre of bewildered academics, embarrassed pundits, and bitter investors in its wake. How could so many leading academics, prestigious pundits, and sophisticated investors be so terribly wrong (for decades) about Japan’s market for hostile takeovers? This is the enigma of hostile takeovers in Japan, which we seek to explain in this Article.We argue that, in applying abstract theories derived from the Anglo-American experience, Western observers have neglected to account for local, idiosyncratic, Japanese factors that have stifled the market for corporate control in Japan. First, Japan transcends and complicates the conventional dispersed/concentrated shareholding dichotomy, as shown by the presence of dispersed stable-shareholders who have consistently rallied in support of incumbent management against hostile acquirers. Second, a corporate and shareholder culture that remains dominated by lifetime employee controlled corporate boards adds to the resilience of Japanese companies against hostile takeovers. Third, contrary to the belief of Western scholars, Japan’s law on defensive measures cannot be easily compared to the US or UK hostile takeover regimes, as it has developed idiosyncratic features through judicial precedent and corporate practice that have a distinctively anti-takeover flavour. Ultimately, the story of the absence of hostile takeovers in Japan is a cautionary tale to all comparative corporate scholars and foreign investors who underestimate the importance of context: apply Anglo-American generalizations without adequate local knowledge at your own peril.*A condensed and updated version of this draft Article will be published as: Dan W. Puchniak & Masafumi Nakahigashi, ‘The Enigma of Hostile Takeovers in Japan: Bidder Beware’ in Umakanth Varottil & Wan Wai Yee, Comparative Takeover Regulation: Global and Asian Perspectives (Cambridge University Press, forthcoming).","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-08-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130266891","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":"National Security Review in Foreign Investments: A Comparative and Critical Assessment on China and U.S. Laws and Practices","authors":"Xingxi Li","doi":"10.15779/Z38S281","DOIUrl":"https://doi.org/10.15779/Z38S281","url":null,"abstract":"This Article takes a comparative approach to critically assess the laws and practices of national security review in connection with inbound foreign investment in China and the United States—the two biggest host countries for foreign direct investments. While the two regulatory apparatuses bear a degree of formalistic resemblance as China transplanted some of the mechanisms from the United States, they have contrasting effects in implementation. It explains certain nuanced differences in the two regulatory frameworks as well as the distinctive political economies behind institutional designs that contribute to the deviations observed in the two apparatuses. The assessment focuses on three vital aspects: (i) the criticism on the secrecy, unpredictability and politicization in the decision-making process in national security review, (ii) relatedly, the scope and the standards of review that lead to underinclusiveness and over-inclusiveness in enforcement, which add to the uncertainty and blur the line between national security and economic interests, and (iii) a few structural layouts that cause unreasonable delay, present undesirable deterrence effects, dampen efficiency, undermine comparative expertise of regulators, and create misplaced incentives for foreign investors. Regarding the United States, the blurred contour of national security review calls into question whether the review is solely about national security, or if it also concerns economic interests. Against the backdrops of (a) no definition of national security being available, (b) no monetary threshold of reviewable transactions being available, (c) a broad definition of “control,” and (d) the Committee on Foreign Investment (CFIUS) process being immune from judicial review, the case-by-case adjudication approach currently taken by CFIUS is particularly inapt to shed light on a highly secretive CFIUS","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126295360","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":"TYING AND BUNDLED DISCOUNTS: AN EQUILIBRIUM ANALYSIS OF ANTITRUST LIABILITY TESTS","authors":"D. Sibley, M. D. Sibley, M. Williams","doi":"10.15779/Z385W11","DOIUrl":"https://doi.org/10.15779/Z385W11","url":null,"abstract":"Courts have struggled with determining when bundled discounts constitute unlawfully anticompetitive behavior. The current circuit split reflects an absence of consensus. This lack of legal guidance creates uncertainty in the market, with firms being given inconsistent – and sometimes contradictory standards on how to avoid antitrust liability. For the most part, we consider a standard paradigm for analyzing bundled discounts. Suppose that there are two firms. Firm 1 produces a monopoly product, A, and also another product, B, which competes with another version of B produced by Firm 2. The concern is the extent to which the price paid for A is linked to the purchase of B from Firm 1: has the bundling resulted in anticompetitive conduct in violation of Section 2 of the Sherman Act? We analyze three main approaches: the discount attribution test, the Elhauge proposal, and the Profit Sacrifice Test. Each of these has received much recent discussion, but very little of the debate takes into account the effects of bundled discounts where all firms are setting prices that maximize profits, i.e. in equilibrium. . With homogeneous goods in the B market, the attribution test should be failed is all firms are maximizing profits. The Elhauge proposal makes sense with equilibrium prices in some types of markets, but not others. The profit sacrifice test turns out to be vacuous when applied to bundled discounts, since in equilibrium there turns out to be no profit sacrifice. i. We explore related issues with tying arrangements. * The John Michael Stuart Centennial Professor of Economics at the University of Texas at Austin. Ph.D. (Economics) Yale University; B.A. (Economics) Stanford University. The author thanks Keith Hylton, Padmanbhan Srinagesh, David Radlauer, Michael Doane and, especially, Einer Elhauge and Patrick Greenlee for helpful discussions on the issues herein and, most particularly, his wife for assistance and patience over many years. ** Competition Economics, LLC. B.S.E.E. Tufts University. *** Professor & Chair, Department of Business Law, California State University, Northridge. J.D., Boston University; B.A., University of California.","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131849769","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":"Central Bank Independence and Macroprudential Policy: A Critical Look at the U.S. Financial Stability Framework","authors":"A. Duff","doi":"10.15779/Z383002","DOIUrl":"https://doi.org/10.15779/Z383002","url":null,"abstract":"","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2014-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115481603","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":"Micro­fi­nance and the Cor­po­rate Gov­er­nance Conundrum","authors":"Umakanth Varottil","doi":"10.15779/Z387W1Q","DOIUrl":"https://doi.org/10.15779/Z387W1Q","url":null,"abstract":"","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2014-01-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132848687","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":"Secur­ing Mobile Tech­nol­ogy & Finan­cial Trans­ac­tions in the United States","authors":"E. Lumsden","doi":"10.15779/Z38HS2R","DOIUrl":"https://doi.org/10.15779/Z38HS2R","url":null,"abstract":"","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2013-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133504152","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":"Putting Some Product into Work-Product: Corporate Lawyers Learning from Designers","authors":"Jay A. Mitchell","doi":"10.2139/SSRN.2325683","DOIUrl":"https://doi.org/10.2139/SSRN.2325683","url":null,"abstract":"Clients hire corporate lawyers to make useful things for them. Those things are documents, such as contracts and corporate bylaws. Lawyers have some good tools for making these products; standard forms and precedents from prior engagements are prime examples. But corporate lawyers don’t seem to use other tools whose employment might contribute to the utility and value of the product for the client. Those tools, used by designers, include a stance toward the work focused on the reader and actual user experience, and an attention to typography, to facilitating communicative effectiveness through careful attention to the presentation of text. This paper reflects some work by corporate lawyers trying to learn from designers, their work-products, and their literature, in creating legal documents for clients. The materials considered here are governance documents for nonprofit corporations. The paper notes several themes emerging from the literature study, explains why governance materials are a good vehicle for this work, characterizes typical executions of those materials, describes in detail and provides examples of the documents we developed, and makes a few observations about continuing work in the area. The work here is early-stage. As designers might say, we’re doing ideation and prototyping. But we do think the work is suggestive of how even modest awareness of design considerations can make our work-products better products for our clients.","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2013-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121513689","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}