{"title":"Making a Case for Regulating Institutional Shareholders' Corporate Governance Roles","authors":"I. Chiu, D. Katelouzou","doi":"10.2139/SSRN.2896748","DOIUrl":"https://doi.org/10.2139/SSRN.2896748","url":null,"abstract":"Drawing on the disconnect that currently exists between the social expectations associated with the corporate governance role of institutions and the institutions’ private interests, this article suggests that the current English legal framework does not adequately promote an optimal corporate governance role for institutions and does not meet the public interest of safeguarding investors’ long-term saving needs and sustaining a sound wealth-creating corporate sector in the long term. Our starting point is that investor-led governance, as this is aspired by UK policy-makers, is not only a matter of achieving beneficiaries’ private investment objectives through maximising long-term shareholder-value, but a matter of public interest. Next, we argue that existing regimes of private law that govern this area – first, the fabric of largely private law in contract and trust that governs the investment funds’ relationships with their beneficiaries, and, secondly, the company law and corporate governance norms that govern investment funds’ shareholder role – do not adequately take into account the public interest and, increasingly, are unable to meet the needs of private interests too. These inadequacies have only led to reinforcing a governance deficit for institutional shareholder behaviour and have left the dubious quality of institutions’ behaviour to market forces. We suggest that institutions’ shareholder behaviour should be governed in securities and investment management regulation and we outline the broad contours of how this may be achieved.","PeriodicalId":375048,"journal":{"name":"The Journal of Business Law","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129081815","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":"Peaks and Troughs of the U.K. Deferred Prosecution Agreement: The Lesson Learned from the First-Ever DPA between the SFO and ICBC SB PLC","authors":"Costantino Grasso","doi":"10.2139/SSRN.2748688","DOIUrl":"https://doi.org/10.2139/SSRN.2748688","url":null,"abstract":"Schedule 17 of the Crime and Courts Act 2013 introduced Deferred Prosecution Agreements (DPAs) into the English legal system. On the 30th of November 2015 the Industrial and Commercial Bank of China Limited entered into the first-ever deferred prosecution agreement in the U.K. with the Serious Fraud Office. It represents a historic turning point for the English legal system as well as an innovation that has the potential to revolutionise the approach to corporate criminal liability traditionally adopted in the United Kingdom. This paper analyses the legislative provisions under Schedule 17 of the 2013 Act dealing with its most problematic aspects and drawing comparisons with the corresponding legal instruments developed in the U.S. It also investigates the reasons behind the DPA implementation in England and Wales focusing on the growing pressure that was exerted on the authorities to carry out successful investigations against corporations involved in criminal activities. Finally, the paper offers an analysis of the first-ever DPA concluded in the U.K. highlighting the most controversial legal issues arising from such an agreement. This can be considered a landmark decision not only because the SFO's first application for a DPA was approved by the judiciary, but also because it was the first time in which a legal entity was charged in England and Wales with the offence of \"failure of commercial organisations to prevent bribery\" as provided by section 7 of the Bribery Act 2010.","PeriodicalId":375048,"journal":{"name":"The Journal of Business Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132958813","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":"Involuntary Creditors and the Case for Accounting-Based Distribution Regulation","authors":"D. Kershaw","doi":"10.2139/SSRN.1033325","DOIUrl":"https://doi.org/10.2139/SSRN.1033325","url":null,"abstract":"This article argues that accounting-based distribution regulation provides variable and at times significant protection to both existing involuntary creditors - by increasing the probability that they will be paid – and the constituency of involuntary creditors - by decreasing the probability that companies’ actions will produce involuntary creditors. These benefits become visible when close attention is paid to the interaction of applicable accounting standards on the recognition of provisions with the UK’s existing distribution regime. Whilst the current debate and reform consensus correctly analyses the relationship between the current regime and adjusting creditors, the article argues that the organising category of the ‘capital maintenance doctrine’ has obstructed inquiry into the ways in which the existing rules’ dependence on accounting standards results in benefits for involuntary creditors.","PeriodicalId":375048,"journal":{"name":"The Journal of Business Law","volume":"70 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126835343","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":"UK Merger Remedies under Scrutiny","authors":"M. Harker","doi":"10.2139/SSRN.960226","DOIUrl":"https://doi.org/10.2139/SSRN.960226","url":null,"abstract":"This paper focuses on the Somerfield decision of the Competition Appeal Tribunal (CAT). In that decision, the CAT demonstrated a high degree of deference to the Competition Commission where the latter was scoping divestiture remedies in a merger case. This approach is consistent with the case law of the US and the EC and, it is argued, is appropriate given the need for procedural expediency. The decision is placed in the wider context of the debates over the efficacy of merger remedies and the appropriate limits of judicial supervision of agency discretion in this area.","PeriodicalId":375048,"journal":{"name":"The Journal of Business Law","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131762624","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":"Understanding Securities Class Action Lawsuits","authors":"Mallory Waggoner, Reinhold P. Lamb","doi":"10.15640/JBLE.V8N2A2","DOIUrl":"https://doi.org/10.15640/JBLE.V8N2A2","url":null,"abstract":"","PeriodicalId":375048,"journal":{"name":"The Journal of Business Law","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132460147","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":"Application of Third Party Guarantee in Sukuk Al-Ijarah","authors":"Chaibou Issoufou","doi":"10.15640/JBLE.V5N2A1","DOIUrl":"https://doi.org/10.15640/JBLE.V5N2A1","url":null,"abstract":"Sukuk al-Ijarah is the most popular Sukukto fund projects. It plays a vital role in the development of economics in both Muslim and non-Muslim countries, because of its flexibility to finance various projects which need a huge amount of funds. This paper examines the nature of Sukuk al-Ijarah, types of Sukuk alIjarah, structure, and process of issuance of Sukuk al-Ijarah. The paper analyses the issue of third party guarantee in Sukuk al-Ijarah and the surrounding scholarly discourse. The methodology adopted in the paper is qualitative which is based on Islamic jurisprudential methodology to analyse classical and modern scholars‟ viewpoints on the issues that arise in the study. It was found that application of third party guarantee is permissible in the process of Sukuk al-Ijarah provided that it is voluntary without charging a fee.","PeriodicalId":375048,"journal":{"name":"The Journal of Business Law","volume":"124 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123188674","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":"Șukūk al-Muḍārabah and Application of Third-Party Guarantee","authors":"Chaibou Issoufou, U. A. Oseni","doi":"10.15640/JBLE.V4N1A2","DOIUrl":"https://doi.org/10.15640/JBLE.V4N1A2","url":null,"abstract":"This paper explores importance of Șukūk al-Muḍārabah in Islamic capital movement and its suitability for financing projects which individuals are not able to provide capital for them. Șukūk al-Muḍārabah is the most popular Șukūk in Șukūk market which has been structured to provide funds for the big projects which need huge amount of capital. This paper analyses the nature, salient features, and the process of Șukūk al-Muḍārabah. The paper uses qualitative methodology which isbased on the four prominent schools of fiqh and some contemporary scholars. The paper examines to what extent the permissibility of third party guarantee in Șukūk al-Muḍārabah process due to the crucial role that this guarantee plays in protection of Șukūk transaction which exposes to risk transaction. It was found in this paper that application of third party guarantee is permissible in the Șukūk al-Muḍārabah process if it is done without charging a fee.","PeriodicalId":375048,"journal":{"name":"The Journal of Business Law","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123848577","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":"E.M.T.S. Limited v. MTN Communications Limited & Another: Boon or Bane to Enforcement of Competition Law in Nigeria’s Telecommunications Sector?","authors":"Wiseman Ubochioma","doi":"10.15640/JBLE.V4N1A1","DOIUrl":"https://doi.org/10.15640/JBLE.V4N1A1","url":null,"abstract":"In February 2016, the Federal High Court made a seminal decision in Nigeria’s telecommunications industry. It struck out a suit filed by E.M.T.S. Limited (popularly known as Etisalat) against MTN over the latter’s acquisition of Visafone Communications Limited on the grounds that it lacked jurisdiction to entertain the suit. This comment argues that the decision of the court should not be construed as “a missed opportunity” to address the topical issue of anti-competitive conduct in the sector. Instead, it represents a progressive step towards recognising the significance of exploration and compliance with the internal statutory procedures before bringing anti-competitive claims in courts. This would not only enhance compliance with the law but also avail an opportunity for courts to intervene and determine anticompetitive conduct in the sector if the sector-specific regulator fails to do so.","PeriodicalId":375048,"journal":{"name":"The Journal of Business Law","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128066800","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 Practice Guide to Interpreting Statutes for Business Professionals","authors":"Jill Oeding, Brett L. Bueltel","doi":"10.15640/JBLE.V6N2A1","DOIUrl":"https://doi.org/10.15640/JBLE.V6N2A1","url":null,"abstract":"This article gives business professionals practical strategies for reading and interpreting statutes. Statutes affect the average business professional on a daily basis, making it crucial for professionals to be able interpret statutes at a basic level. The authors outline an approach to interpreting statutes, which ultimately exposes the statute's components known as elements, factors, results, and/or exceptions. The authors provide practical tips to reading a statute to ensure the reader adequately understands the statute. The approach uses headings to the reader’s advantage to navigate through the statute and suggests reading through the text of statute multiple times. The authors then encourage readers to identify commonly-used words in statutes such as “and,” “or,” “may,” “except,” and “shall.” and define other statute-specific words. The goal of the approach is to dissect the statute into smaller, more understandable subparts to gain an accurate interpretation of the statute’s components.","PeriodicalId":375048,"journal":{"name":"The Journal of Business Law","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132776413","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":"Legal Issues of Firms with Hybrid Organizational Structure in the Healthcare and Insurance Industry","authors":"Christopher J. Marquette, D. Fisher","doi":"10.15640/JBLE.V4N1A3","DOIUrl":"https://doi.org/10.15640/JBLE.V4N1A3","url":null,"abstract":"This study presents the complex issues related to hybrid organizational structure, i.e., nonprofit organizations that own for-profit subsidiaries, in the healthcare and insurance industries. The tax code allows chartering of tax-exempt entities if they are organized exclusively for a benevolent purpose with no private individual benefitting from its earnings. These organizations, however, can charter for-profit subsidiaries. This hybrid form has increased in prevalence in the healthcare industry in recent years and raises the question of when an organization no longer warrants nonprofit status. We discuss legal issues related to tax code and competitiveness and illustrate with a case study.","PeriodicalId":375048,"journal":{"name":"The Journal of Business Law","volume":"71 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114014917","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}