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Governing institutional investor engagement: from activism to stewardship to custodianship? 管理机构投资者参与:从激进主义到管理再到托管?
IF 1.1 4区 社会学
Journal of Corporate Law Studies Pub Date : 2021-08-17 DOI: 10.1080/14735970.2021.1965338
Andrew Johnston, Rachelle Belinga, B. Segrestin
{"title":"Governing institutional investor engagement: from activism to stewardship to custodianship?","authors":"Andrew Johnston, Rachelle Belinga, B. Segrestin","doi":"10.1080/14735970.2021.1965338","DOIUrl":"https://doi.org/10.1080/14735970.2021.1965338","url":null,"abstract":"ABSTRACT Institutional investor engagement with companies is a long-standing goal of policymakers. This article evaluates whether the UK's regulatory and soft law regime is likely to orient engagement towards its goal of long-termism and sustainability. After a historical overview, it notes that institutional investors have considerable discretion in whether and how they engage with companies. Three existing forms of engagement behaviour (termed agency, trusteeship and ownership) are identified, and the article examines whether the current regime promotes or discourages them. All three may degenerate into passivity, short-term share trading or ‘bad activism’ focused on short-term value maximisation, satisfying the actors in the investment chain but failing to steer companies towards long-termism and sustainability. The article concludes that the roles of shareholders and company management should be articulated more clearly in the stewardship regime, and puts forward a custodianship model of engagement that balances managerial autonomy and accountability.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"22 1","pages":"45 - 82"},"PeriodicalIF":1.1,"publicationDate":"2021-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43620823","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Towards an optimal model of directors’ duties in the zone of insolvency: an economic and comparative approach 走向破产区董事职责的最佳模式:一种经济和比较方法
IF 1.1 4区 社会学
Journal of Corporate Law Studies Pub Date : 2021-08-13 DOI: 10.1080/14735970.2021.1943934
Aurelio Gurrea-Martínez
{"title":"Towards an optimal model of directors’ duties in the zone of insolvency: an economic and comparative approach","authors":"Aurelio Gurrea-Martínez","doi":"10.1080/14735970.2021.1943934","DOIUrl":"https://doi.org/10.1080/14735970.2021.1943934","url":null,"abstract":"<p><b><b>ABSTRACT</b></b></p><p>When a company becomes factually insolvent but it is not yet subject to a formal insolvency proceeding, the shareholders - or the directors acting on their behalf - may engage, even in good faith, in various forms of behaviour that can divert or destroy value at the expense of the creditors. For this reason, many jurisdictions impose special directors’ duties in the zone of insolvency. From a sample of more than 25 countries from North America, Europe, Latin America, Africa, Middle East, and the Asia-Pacific, this article seeks to explore the most common regulatory models of directors’ duties in the zone of insolvency existing around the world. It concludes by providing various policy recommendations to design directors’ duties in the zone of insolvency across jurisdictions taking into account international divergences in corporate ownership structures, debt structures, level of financial development, efficiency of insolvency proceedings, and sophistication of the judiciary.</p>","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"84 1","pages":""},"PeriodicalIF":1.1,"publicationDate":"2021-08-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138536225","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Section 29A of India’s Insolvency and Bankruptcy Code: an instance of hard cases making bad law? 印度《破产法》第29A条:难案难法?
IF 1.1 4区 社会学
Journal of Corporate Law Studies Pub Date : 2021-07-15 DOI: 10.1080/14735970.2022.2083771
M. R. Ram Mohan, Vishakha Raj
{"title":"Section 29A of India’s Insolvency and Bankruptcy Code: an instance of hard cases making bad law?","authors":"M. R. Ram Mohan, Vishakha Raj","doi":"10.1080/14735970.2022.2083771","DOIUrl":"https://doi.org/10.1080/14735970.2022.2083771","url":null,"abstract":"ABSTRACT The Insolvency and Bankruptcy Code (IBC) of India which offers a mode of reorganisation for distressed corporations prevents promoters and directors with non-performing assets from submitting plans to rescue their company. This provision is contained under section 29A of the IBC. Judicial interpretation has required corporate reorganisations under India's Companies Act to give effect to the limitations under section 29A as well. The introduction and application of section 29A is reflective of a broader scepticism towards allowing promoters and directors whose companies entered financial distress from regaining control. This article evaluates whether section 29A has addressed the problems it had set out to and finds that some ineligibilities prescribed for the incumbent management under section 29A can be relaxed. It also uses the example of the United Kingdom's insolvency regime (with which India bears similarities) to explain why resolution plans from the incumbent management should not be disallowed.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"22 1","pages":"365 - 390"},"PeriodicalIF":1.1,"publicationDate":"2021-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46567411","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 2
Simplified corporations and entrepreneurship 简化企业和创业
IF 1.1 4区 社会学
Journal of Corporate Law Studies Pub Date : 2021-07-03 DOI: 10.1080/14735970.2021.1973712
Alvaro Pereira
{"title":"Simplified corporations and entrepreneurship","authors":"Alvaro Pereira","doi":"10.1080/14735970.2021.1973712","DOIUrl":"https://doi.org/10.1080/14735970.2021.1973712","url":null,"abstract":"ABSTRACT The World Bank's Doing Business project encourages the reduction of business registration requirements to stimulate entrepreneurship and economic development. Over the last two decades, it has contributed to the harmonisation of these requirements worldwide, but the rates of newly registered firms have not always followed through. Its unparalleled influence and emphasis on procedural reforms shadowed the development and comparative evaluation of alternative incentives to entrepreneurship. This article contributes to filling this gap, by empirically examining the impact of simplified corporations, legal forms designed to stimulate entrepreneurial activity in Chile and Colombia. These new corporate forms provide not only abbreviated registration and operation rules, but also single ownership and the ability to issue classes of shares, two features that remain unavailable in many jurisdictions. The results confirm that company law reforms – both procedural and substantive – are insufficient to significantly increase the annual number of newly registered firms. Still, simplified corporations have quickly become entrepreneurs’ preferred legal form in those countries, contributing to expanding new businesses’ access to external finance.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"21 1","pages":"433 - 465"},"PeriodicalIF":1.1,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48659859","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
Related party transactions by directors/managers in public companies: a data-supported analysis 上市公司董事/经理的关联交易：数据支持的分析
IF 1.1 4区 社会学
Journal of Corporate Law Studies Pub Date : 2021-07-02 DOI: 10.1080/14735970.2021.1940681
A. A. Gözlügöl
{"title":"Related party transactions by directors/managers in public companies: a data-supported analysis","authors":"A. A. Gözlügöl","doi":"10.1080/14735970.2021.1940681","DOIUrl":"https://doi.org/10.1080/14735970.2021.1940681","url":null,"abstract":"ABSTRACT Related party transactions (RPTs) are a primary way for corporate insiders to expropriate company value. Conventional wisdom in corporate law theory holds however that RPTs entered into by directors/managers (rather than controlling shareholders) are of lesser concern in both controlled and dispersedly-owned companies. This article challenges this conventional wisdom and puts forward various other theories under which RPTs entered into by directors/managers remain a significant concern in terms of value-diversion in both share-ownership structures. The article then presents hand-collected data of RPTs entered into by directors/managers who are not significant/controlling shareholders in companies listed on the prime standard of the German stock exchange. This dataset and its evaluation provide preliminary indications and exploratory evidence regarding the threat posed by RPTs entered into by abovementioned persons. Furthermore, up-to-date share-ownership data of those companies and several findings regarding disclosure practices are provided. The article closes with proposing a few regulatory improvements and implications.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"21 1","pages":"517 - 555"},"PeriodicalIF":1.1,"publicationDate":"2021-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14735970.2021.1940681","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44802878","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 2
Promotion of group restructuring and cross-entity liability arrangements 促进集团重组和跨实体责任安排
IF 1.1 4区 社会学
Journal of Corporate Law Studies Pub Date : 2021-05-13 DOI: 10.1080/14735970.2021.1925484
I. Kokorin
{"title":"Promotion of group restructuring and cross-entity liability arrangements","authors":"I. Kokorin","doi":"10.1080/14735970.2021.1925484","DOIUrl":"https://doi.org/10.1080/14735970.2021.1925484","url":null,"abstract":"ABSTRACT Modern enterprises often operate as interconnected groups of companies. This is facilitated by various cross-entity liability arrangements, which aim at risk mitigation and control, and may contribute to the reduced agency cost of debt. However, they pierce limited liability (cross-guarantees) or impose correlation between the fates of separate entities (intercompany cross-defaults and ipso facto clauses). They can promote group exposure and disincentivise debtors from taking early actions to avoid insolvency. This paper explores the tools that are embraced to address these problems to achieve group restructuring. They include restrictions of cross-entity ipso facto clauses and extension of enforcement stays to group entities. I examine the ex ante and ex post effects of group liability arrangements, make a comparative overview of national law responses and suggest recommendations to find a balanced approach to cross-entity liability arrangements, enhance the existing legal regimes and form the basis for future reforms of insolvency laws.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"21 1","pages":"557 - 593"},"PeriodicalIF":1.1,"publicationDate":"2021-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14735970.2021.1925484","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48732544","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
Transnational corporations and modern slavery: Nevsun and beyond 跨国公司与现代奴隶制：Nevsun及其后
IF 1.1 4区 社会学
Journal of Corporate Law Studies Pub Date : 2021-04-23 DOI: 10.1080/14735970.2021.1916186
Akshaya Kamalnath
{"title":"Transnational corporations and modern slavery: Nevsun and beyond","authors":"Akshaya Kamalnath","doi":"10.1080/14735970.2021.1916186","DOIUrl":"https://doi.org/10.1080/14735970.2021.1916186","url":null,"abstract":"ABSTRACT A recent decision of the Supreme Court of Canada Nevsun Resources Ltd. v Araya, has brought the issue of transnational corporations’ responsibility for human rights violations to the forefront in Canada. After critically examining the decision, this article aims to propose an effective legislative design for Canada. The article also examines another pertinent decision (this one from the UK), Vedanta Resources plc. v Lungowe in this regard. The proposals for effective legislation in Canada set out in this article will also be relevant for other countries considering the introduction of (or amending) modern slavery laws.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"21 1","pages":"491 - 516"},"PeriodicalIF":1.1,"publicationDate":"2021-04-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14735970.2021.1916186","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48838518","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
London Allowing dual class Premium listings: A Swedish comment 伦敦允许双重高级房源：瑞典评论
IF 1.1 4区 社会学
Journal of Corporate Law Studies Pub Date : 2021-04-14 DOI: 10.1080/14735970.2021.1968993
Erik Lidman, Rolf Skog
{"title":"London Allowing dual class Premium listings: A Swedish comment","authors":"Erik Lidman, Rolf Skog","doi":"10.1080/14735970.2021.1968993","DOIUrl":"https://doi.org/10.1080/14735970.2021.1968993","url":null,"abstract":"ABSTRACT In the UK Listing Review it is suggested that the LSE should allow companies with dual class share (DCS) structures to list on the Premium segment. In this paper, we discuss this proposal. First, we present an overview of the DCS-debate together with the proposition in the Review to allow for DCS-listings under certain conditions. Second, we discuss the arguments that are made against DCS-listings. For the sake of comparison and reference, we then give an overview of the Swedish DCS-regulation. From there, we discuss the conditions for DCS-listing recommended in the Review. Our conclusion is that several of the DCS-listing conditions suggested might not only hinder DCS-structures from being useful for companies that wish to utilise such structures but would in several cases disable the corporate governance mechanisms that would otherwise counteract several of the problems that DCS-structures can give rise to, most prominently the market for corporate control.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"22 1","pages":"83 - 114"},"PeriodicalIF":1.1,"publicationDate":"2021-04-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42807624","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Institutional investors as environmental activists 作为环保活动家的机构投资者
IF 1.1 4区 社会学
Journal of Corporate Law Studies Pub Date : 2021-04-06 DOI: 10.1080/14735970.2021.1881356
Tom Giles Kelly
{"title":"Institutional investors as environmental activists","authors":"Tom Giles Kelly","doi":"10.1080/14735970.2021.1881356","DOIUrl":"https://doi.org/10.1080/14735970.2021.1881356","url":null,"abstract":"ABSTRACT Climate change mitigation has presented a serious problem for global regulators. An area that is emerging from a collection of legislative initiatives of the European Commission is the role of institutional investors in holding companies accountable for decisions that have a climate change impact. These legislative initiatives are the Revised Shareholder Rights Directive, Disclosures Regulation, Taxonomy Regulation and Revised Benchmarks Regulation. The article analyses each piece of legislation critically and seeks to describe their cumulative effect in terms of what is required of institutional investors. This article argues that these legislative initiatives will, together, create a normative expectation that institutional investors adopt, to a greater extent than has been previously observed, the role of activist with respect to the climate change impacts of investee companies. The article then describes the possibility of enforcement of this normative expectation by non-State actors.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"21 1","pages":"467 - 489"},"PeriodicalIF":1.1,"publicationDate":"2021-04-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14735970.2021.1881356","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42220314","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 5
Towards an optimal composition of bail-inable debtholders? 寻求可保释债券持有人的最佳组合？
IF 1.1 4区 社会学
Journal of Corporate Law Studies Pub Date : 2021-04-01 DOI: 10.1080/14735970.2021.1908808
Edoardo D. Martino
{"title":"Towards an optimal composition of bail-inable debtholders?","authors":"Edoardo D. Martino","doi":"10.1080/14735970.2021.1908808","DOIUrl":"https://doi.org/10.1080/14735970.2021.1908808","url":null,"abstract":"ABSTRACT The core insight of the new EU framework for bank resolution is to allocate losses to bank's insiders (bail-inable creditors). This affects both financial stability and the corporate governance of banks. The current academic debate on bank resolution overlooks the relevance of identifying the investors in bail-inable securities (ie who is going to bear losses) and the role of counterparty risk. This article identifies the investors that are better suited to hold those instruments and highlights the trade-offs between the corporate governance role and the threat to financial stability posed by different investors. The article demonstrates that the composition of bail-inable debtholders matters and shows – empirically and theoretically – a transition towards a desirable composition of holders; although a considerable room for improvement remains. This exercise deepens the understanding of the impact of the resolution framework and the importance of counterparties for its credibility and future applications.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"21 1","pages":"321 - 364"},"PeriodicalIF":1.1,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14735970.2021.1908808","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48179176","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 3
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