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Enforceable undertakings’ practices across Australian regulators: lessons learned 澳大利亚监管机构强制执行企业的做法:经验教训
IF 1.1 4区 社会学
Journal of Corporate Law Studies Pub Date : 2020-07-27 DOI: 10.1080/14735970.2020.1789820
M. Nehme
{"title":"Enforceable undertakings’ practices across Australian regulators: lessons learned","authors":"M. Nehme","doi":"10.1080/14735970.2020.1789820","DOIUrl":"https://doi.org/10.1080/14735970.2020.1789820","url":null,"abstract":"ABSTRACT An enforceable undertaking is a regulatory sanction available to a range of Australian Federal and State regulators. This sanction takes the form of a settlement that allows the regulator to remedy alleged breaches of the law. It had been deemed a success in Australia and as such has been introduced in other jurisdictions such as the United Kingdom and New Zealand. However, this sanction has been heavily criticised over the last few years in Australia due to its lack of accountability and opaqueness in certain settings. In view of the fact that enforceable undertakings have been relied on in Australia for over a decade (in certain instances closer to three decades) this article compares 18 Australian Federal and State regulators’ practices, to put forward recommendations on best practices that may be adopted by these and other agencies that have this power at their disposal.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"21 1","pages":"283 - 319"},"PeriodicalIF":1.1,"publicationDate":"2020-07-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14735970.2020.1789820","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45632483","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
Material Adverse Change uncertainty: costing a fortune if not corporate lives 重大不利变化的不确定性：如果不是企业生命，也会损失一大笔钱
IF 1.1 4区 社会学
Journal of Corporate Law Studies Pub Date : 2020-07-23 DOI: 10.1080/14735970.2020.1781484
Narine Lalafaryan
{"title":"Material Adverse Change uncertainty: costing a fortune if not corporate lives","authors":"Narine Lalafaryan","doi":"10.1080/14735970.2020.1781484","DOIUrl":"https://doi.org/10.1080/14735970.2020.1781484","url":null,"abstract":"ABSTRACT Material Adverse Change/Effect (‘MAC') has become an important yet chaotic legal concept. With its vague definition and multi-functional objectives on the one hand, and dramatic consequences arising from the instability of the global financial system, terrorism, Brexit, and COVID-19 on the other hand, the significance of MAC has grown. The article analyses the uncertainty surrounding MAC under English law, critically investigating MAC and its future in debt finance and M&A following Delaware’s ground-breaking decision in Akorn v Fresenius and the more recent decision in Channel Medsystems v Boston Scientific. The article argues (i) for a growing ex-ante and ex-post practical importance of MAC; (ii) that Delaware MAC principles could be a relevant reference for resolving English MAC uncertainties, provided one considers the specifics of MAC, in both jurisdictions, and in M&A and debt finance; and (iii) that there is no overarching model for correctly applying MAC, in debt finance or M&A.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"21 1","pages":"39 - 84"},"PeriodicalIF":1.1,"publicationDate":"2020-07-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14735970.2020.1781484","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48627177","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
The anatomy of Singapore’s statutory derivative action: why do shareholders sue – or not? 新加坡法定衍生诉讼剖析：股东为什么要起诉？
IF 1.1 4区 社会学
Journal of Corporate Law Studies Pub Date : 2020-07-02 DOI: 10.1080/14735970.2019.1681049
Samantha S. Tang
{"title":"The anatomy of Singapore’s statutory derivative action: why do shareholders sue – or not?","authors":"Samantha S. Tang","doi":"10.1080/14735970.2019.1681049","DOIUrl":"https://doi.org/10.1080/14735970.2019.1681049","url":null,"abstract":"ABSTRACT The derivative action is widely acknowledged to be an important part of corporate law and governance. Over a quarter century after the statutory derivative action landed in Singapore and almost five years after reforms extended it to listed companies, the time is ripe to investigate a fundamental question: what is the reality of Singapore’s statutory derivative action? Drawing on unpublished data on Singapore companies and a hand-collected dataset of all publicly available judgments on statutory derivative actions in Singapore from 1993 to 2018, my study reveals that litigation rates are generally low. This article explains why derivative actions remain rare and unlikely for listed companies in Singapore, and also offers insights into how context-specific, non-financial factors affect shareholder litigation. The statutory derivative action plays a distinctive and valuable role in closely-held companies – in spite of poor financial incentives to sue, and the availability of alternative remedies.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"20 1","pages":"327 - 357"},"PeriodicalIF":1.1,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14735970.2019.1681049","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49332896","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
The Lloyds case judgment: illuminating on practice but not on law 劳埃德案的判决:对实践有启发，但对法律没有启发
IF 1.1 4区 社会学
Journal of Corporate Law Studies Pub Date : 2020-05-20 DOI: 10.1080/14735970.2020.1754740
Edward Walker-Arnott
{"title":"The Lloyds case judgment: illuminating on practice but not on law","authors":"Edward Walker-Arnott","doi":"10.1080/14735970.2020.1754740","DOIUrl":"https://doi.org/10.1080/14735970.2020.1754740","url":null,"abstract":"ABSTRACT The Lloyds case concerned the 2009 acquisition of HBOS. Shareholders sued 5 directors for losses sustained by them. It was the first case in the UK arising out of the financial crisis of 2008/2009 which went to full trial, with cross- examination of defendant directors, advisers and expert witnesses. It was also the first minority shareholder group litigation case brought against the directors of a listed company pursued through trial to judgment. The 280 page judgment provides an insight into the processes of listed company takeovers. It might have provided illumination of directors’ duties and of the reflective loss principle, which denies shareholders recovery where the company has a claim on the same facts. It did not: and the case gives attention to two reported cases which have long since lost authority.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"20 1","pages":"579 - 597"},"PeriodicalIF":1.1,"publicationDate":"2020-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14735970.2020.1754740","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42820029","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
‘Say on pay’ regulations and director remuneration: evidence from the UK in the past two decades “薪酬话语权”法规与董事薪酬:来自英国过去二十年的证据
IF 1.1 4区 社会学
Journal of Corporate Law Studies Pub Date : 2020-05-13 DOI: 10.1080/14735970.2020.1754151
B. Wu, Iain Macneil, Katarzyna Chalaczkiewicz-Ladna
{"title":"‘Say on pay’ regulations and director remuneration: evidence from the UK in the past two decades","authors":"B. Wu, Iain Macneil, Katarzyna Chalaczkiewicz-Ladna","doi":"10.1080/14735970.2020.1754151","DOIUrl":"https://doi.org/10.1080/14735970.2020.1754151","url":null,"abstract":"ABSTRACT The UK was the first country to introduce so-called ‘say on pay’ regulation in 2002, by providing shareholders with an advisory vote on the Directors’ Remuneration Report. That approach recognised that disclosure alone was not an adequate regulatory response to the widening gap between directors’ pay and company performance nor to the broader political concern over the implications of this trend for social solidarity. A second stage in the evolution of the regime began in 2013 when shareholders were granted a binding vote on remuneration policy. In this article we present the results of the first longitudinal survey of the entire phase of ‘say on pay’ regulation in the UK to date. We examine the link between each stage of ‘say on pay’ regulation and the level and growth of directors’ remuneration. We conclude by linking our empirical evidence to broader developments in shareholder engagement with listed companies.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"20 1","pages":"541 - 577"},"PeriodicalIF":1.1,"publicationDate":"2020-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14735970.2020.1754151","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42341631","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
The social enterprise company in Europe: policy and theory 欧洲社会企业:政策与理论
IF 1.1 4区 社会学
Journal of Corporate Law Studies Pub Date : 2020-03-27 DOI: 10.1080/14735970.2020.1744409
J. S. Liptrap
{"title":"The social enterprise company in Europe: policy and theory","authors":"J. S. Liptrap","doi":"10.1080/14735970.2020.1744409","DOIUrl":"https://doi.org/10.1080/14735970.2020.1744409","url":null,"abstract":"ABSTRACT Corporate organisational constructs facilitating social enterprise have proliferated for the last decade across Europe. This article investigates this phenomenon, and provides an initial analytical framework through which the social enterprise company can be understood, both on its own terms and with respect to the traditional business organisation. The article begins by laying out policymakers' collective intentions for creating the social enterprise company. The discussion then turns to theorising the social enterprise company's organisational architecture. The social enterprise company is a hybrid organisational construct designed to generate social value. For this reason it operates according to the principle of publicness. The intention was also for the social enterprise company to be resource flexible and attract altruistic investors and managers. The article then further extends the theoretical discussion by mapping early stage and later stage investor involvement with reference to the current state of the impact investment landscape, and investigates how these considerations relate to the jurisdictions' isomorphic prevention mechanisms, which encourage impact fidelity in the context of a conversion or a winding up.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"20 1","pages":"495 - 539"},"PeriodicalIF":1.1,"publicationDate":"2020-03-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14735970.2020.1744409","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41642343","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: 4
A flexible model for efficient employee participation in UK companies 英国公司员工高效参与的灵活模式
IF 1.1 4区 社会学
Journal of Corporate Law Studies Pub Date : 2020-03-18 DOI: 10.1080/14735970.2020.1735161
Andreas Kokkinis, Konstantinos Sergakis
{"title":"A flexible model for efficient employee participation in UK companies","authors":"Andreas Kokkinis, Konstantinos Sergakis","doi":"10.1080/14735970.2020.1735161","DOIUrl":"https://doi.org/10.1080/14735970.2020.1735161","url":null,"abstract":"<p><b>ABSTRACT</b></p> <p>Corporate contractarian literature dismisses employee participation as inefficient on the grounds that, if it were efficient, it would be voluntarily adopted widely. We argue that the scarcity of employee participation in the UK can be attributed to shareholder short-termism and behavioural biases and, therefore, that the question of its efficiency remains open for companies that want to explore this possibility. We thus propose a flexible approach that UK companies can follow to implement employee participation. Our approach takes into account the broader UK institutional framework by creating adaptable and long-term solutions for both listed and large private companies. We argue that the most pragmatic way to encourage efficient employee participation is through the introduction of formal employee advisory panels and, in the longer term, the proliferation of employee share ownership schemes coupled with special rights to appoint a number of directors in tandem with the size of employee share ownership.</p>","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"8 1","pages":""},"PeriodicalIF":1.1,"publicationDate":"2020-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138536227","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
The contours and content of the ‘creditors’ interests duty’ “债权人利益义务”的内涵与内涵
IF 1.1 4区 社会学
Journal of Corporate Law Studies Pub Date : 2020-03-16 DOI: 10.1080/14735970.2020.1770454
R. Langford, I. Ramsay
{"title":"The contours and content of the ‘creditors’ interests duty’","authors":"R. Langford, I. Ramsay","doi":"10.1080/14735970.2020.1770454","DOIUrl":"https://doi.org/10.1080/14735970.2020.1770454","url":null,"abstract":"ABSTRACT It is well established in a number of Commonwealth jurisdictions that company directors are subject to a duty to consider the interests of creditors as the company nears insolvency. The precise contours of this duty are, however, indeterminate. Particular questions surround when the duty arises and what it requires of directors. Courts in the UK and Australia have provided different answers to these questions. This article critically examines jurisprudence from the UK and Australia and concludes that the position adopted by the England and Wales Court of Appeal is preferable.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"21 1","pages":"85 - 108"},"PeriodicalIF":1.1,"publicationDate":"2020-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14735970.2020.1770454","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44821309","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
Legal approaches to management of the risk of cloud computing insolvencies 管理云计算破产风险的法律途径
IF 1.1 4区 社会学
Journal of Corporate Law Studies Pub Date : 2020-02-26 DOI: 10.1080/14735970.2020.1724504
R. Parry, R. Bisson
{"title":"Legal approaches to management of the risk of cloud computing insolvencies","authors":"R. Parry, R. Bisson","doi":"10.1080/14735970.2020.1724504","DOIUrl":"https://doi.org/10.1080/14735970.2020.1724504","url":null,"abstract":"ABSTRACT The failure of a cloud computing service provider has been acknowledged as presenting significant potential risk, given growing usage of cloud services by businesses, including financial institutions, public authorities and individuals. The disruption that a loss of access to data, or the means to process it, could present risk of a systemic nature. However, approaches to cloud computing insolvencies are yet to receive significant attention in academic literature. This article represents an initial attempt to identify the potential impact of an insolvency in this area as well as possible contractual approaches to risk containment, noting their limitations. It then identifies possible data recovery difficulties and the tensions that this would lead to in insolvencies. Drawing upon examples of insolvencies in other sectors, it suggests preventative and reactive approaches to cases of wide public impact, as well as a need for a supranational approach given the potential for a ‘too big to fail’ scenario.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"20 1","pages":"421 - 451"},"PeriodicalIF":1.1,"publicationDate":"2020-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14735970.2020.1724504","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42254191","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: 4
A flexible model for efficient employee participation in UK companies 英国公司员工高效参与的灵活模式
IF 1.1 4区 社会学
Journal of Corporate Law Studies Pub Date : 2020-02-17 DOI: 10.2139/ssrn.3539443
A. Kokkinis, Konstantinos Sergakis
{"title":"A flexible model for efficient employee participation in UK companies","authors":"A. Kokkinis, Konstantinos Sergakis","doi":"10.2139/ssrn.3539443","DOIUrl":"https://doi.org/10.2139/ssrn.3539443","url":null,"abstract":"ABSTRACT Corporate contractarian literature dismisses employee participation as inefficient on the grounds that, if it were efficient, it would be voluntarily adopted widely. We argue that the scarcity of employee participation in the UK can be attributed to shareholder short-termism and behavioural biases and, therefore, that the question of its efficiency remains open for companies that want to explore this possibility. We thus propose a flexible approach that UK companies can follow to implement employee participation. Our approach takes into account the broader UK institutional framework by creating adaptable and long-term solutions for both listed and large private companies. We argue that the most pragmatic way to encourage efficient employee participation is through the introduction of formal employee advisory panels and, in the longer term, the proliferation of employee share ownership schemes coupled with special rights to appoint a number of directors in tandem with the size of employee share ownership.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"20 1","pages":"453 - 493"},"PeriodicalIF":1.1,"publicationDate":"2020-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48773423","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
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