European Company and Financial Law Review最新文献

{"title":"From London to the Continent: Rethinking Corporate Governance Codes in Europe","authors":"Piergaetano Marchetti, Maria Lucia Passador","doi":"10.1515/ecfr-2024-0005","DOIUrl":"https://doi.org/10.1515/ecfr-2024-0005","url":null,"abstract":"This paper critically evaluates the arguments proposed by Cheffins and Reddy in their recent article, advocating for the abolition of the UK Corporate Governance Code with the promise of substantial benefits to the market. The exploration primarily delves into the potential ramifications of such a proposal on other European jurisdictions, where Codes of corporate governance hold significant sway in the corporate domain, reflecting a spectrum of legal and cultural traditions. While the article under scrutiny is geographically confined to the United Kingdom, the ramifications of such a proposal extend far beyond, resonating deeply with the pervasive influence of the UK Code of Corporate Governance even within continental Europe, urging a comprehensive examination.The analysis begins by revisiting the arguments advanced by the authors and scrutinizing them in light of the Continental European context. This examination reveals several concerns that necessitate attention. We contend that despite geographic limitations, the Code serves as a valuable and adaptable instrument for fostering accountability, transparency, and innovation in markets transcending borders and jurisdictions. Its continued relevance is underscored by its utility in addressing emergent issues and governance challenges, particularly in the realm of ESG and auditing. Consequently, the proposition of its abolition carries significant drawbacks for both companies and investors alike. In conclusion, we assert that European jurisdictions should not dismiss Codes of corporate governance outright, but rather advocate for their refinement and adaptation to the evolving imperatives of the globalized <jats:target target-type=\"next-page\">130</jats:target>economy. Such an approach is deemed imperative to maintain and enhance corporate governance standards, thereby ensuring the continued integrity and efficiency of European markets.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"3 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2024-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142250809","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":"Traditional and Digital Limits of Collective Investment Schemes","authors":"Julia Sinnig, Dirk A Zetzsche","doi":"10.1515/ecfr-2024-0007","DOIUrl":"https://doi.org/10.1515/ecfr-2024-0007","url":null,"abstract":"<jats:target target-type=\"next-page\">157</jats:target> <jats:italic>This article discusses the regulatory definition of collective investment undertakings (CIUs) as provided for by Article 4 (1) (a) AIFMD and Article 1 (1) UCITSD in the context of traditional family offices, holding companies, and joint ventures, and distinguishes them from more recently observed digital asset pools such as digitally managed accounts, crypto lending, crypto staking, and decentralized autonomous organizations.Testing the legal definition of CIUs in the context of traditional and digital pooled investments allows not only for the delineation of the scope of AIFMD (and to a lesser extent, UCITSD), but also provides insights on the desirable content of Level 2 regulation under MiCA. While ESMA guidance based on many years of supervisory experience sets the limits on traditional use cases, the digital boundaries of collective investment schemes are largely untested and to some extent uncertain, resulting in high costs for legal advice, as demonstrated by our brief look into MiCA set out in this article. To address these matters, we argue in favor of broad default rules on pooled finance, paired with exemptive powers from individual or all rules where a disparity exists between the purpose of regulation and the regulated activities. If paired with carve-outs for applications below EUR 5 million (where retail investors are present) and EUR 100 million (sophisticated clients only), these default rules would assist supervisory authorities in setting adequate boundaries for investment fund regulation of innovative financial products. After the introduction (Pt. I), Pt. II outlines the legal definition(s) of CIUs; Pt. III discusses the regulatory limits in the context of traditional use cases; Pt. IV analyzes the limits for digitally managed accounts, decentralized autonomous organizations (DAOs), and decentralized finance as a whole (referred to collectively as “digital limits”); Pt. V presents our policy considerations; and Pt. VI concludes. </jats:italic>","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"6 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2024-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142250810","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 Strategic Importance of Public Recapitalisation in Banking Resolution, What Ireland Can Tell","authors":"Elise Lefeuvre","doi":"10.1515/ecfr-2024-0004","DOIUrl":"https://doi.org/10.1515/ecfr-2024-0004","url":null,"abstract":"<jats:target target-type=\"next-page\">104</jats:target> <jats:italic>Recapitalisation of banks, as well as the whole banking resolution process, was fully public during the 2008 financial crisis. The Single Resolution Mechanism shifted from this approach and created a public-private system, where private individuals and entities can be called in to fund recapitalisation (bail-in). This article argues that recapitalisation (and banking resolution as a whole) should be fully public so it can be rapid, negotiation-free, and in the best interest of the State. The 2008 Irish recapitalisation illustrates well the rewards of having public recapitalisation, while it also tells where improvements are needed to protect recapitalisation process and taxpayers. Currently, the Single Resolution Mechanism has different recapitalisation methods, which creates some complexity and overlaps. </jats:italic>","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"170 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2024-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141150098","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 Polish Model of a Limited Joint-Stock Partnership in Comparison with Other European Legal Systems","authors":"Anna Moszyńska, Aleksandra Sikorska-Lewandowska, Mariusz T. Kłoda","doi":"10.1515/ecfr-2023-0036","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0036","url":null,"abstract":"<jats:target target-type=\"next-page\">866</jats:target>The Polish regulation concerning a limited joint-stock partnership has been in force since the date of entry into force of the Commercial Companies Code (CCC). The CCC divides commercial companies into “partnerships” and “capital companies”. Each of those two types of commercial companies is governed by separate rules. The completion of twenty years of Polish CCC in force prompts us to analyse the juridical model adopted by the legislature, according to which limited joint-stock partnership is classified as a partnership. During this period, there have been significant events making the verification of the validity of this model possible, including Poland’s accession to the European Union (EU), which has resulted in the need to adapt national regulations to EU law – both in the field of private law (including commercial law) and public law (including tax law). The need to amend the domestic law in connection with the implementation of Directive (EU) 2019/2121 of the European Parliament and of the Council of November 27, 2019 amending Directive (EU) 2017/1132 (as regards cross-border conversions, mergers, and divisions of companies) – is a direct motivation for undertaking research on a Polish limited joint-stock partnership.<jats:target target-type=\"next-page\">867</jats:target>","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"46 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2024-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139977893","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":"Implementation of the Provisions of Directive 2017/1132 on Openness and Reliability of Registers in Poland and Other Selected EU Countries","authors":"Konrad Garnowski","doi":"10.1515/ecfr-2023-0037","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0037","url":null,"abstract":"<jats:target target-type=\"next-page\">887</jats:target>The paper presents the issue of openness and reliability of business registers maintained by the Member States of the European Union on the basis of acts that implement EU directives. The first part of the article presents the historical evolution of the provisions of EU law, while the second part focuses on the assessment of regulations currently in force. On this basis, in the third part of the article, the author carries out an analysis of how EU regulations are implemented in national laws in the context of openness and reliability of registers, with a particular focus on Polish law and references to the implementation methods adopted in other selected Member States. Based on this comparative analysis, the author ultimately comes to the conclusion that the general direction adopted in EU law is correct, but Polish domestic law is burdened with flaws, indicating low efficiency of implementation of EU law. Thus, the author makes suggestions as to the possible directions of development of domestic law, and to some extent also in relation to EU law.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"17 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2024-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139977894","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":"U. S. vs. EU Insider Trading Regulation: Risks and Challenges from a European Perspective","authors":"Cédric Remund, Paul Tuchmann","doi":"10.1515/ecfr-2023-0032","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0032","url":null,"abstract":"<jats:target target-type=\"next-page\">822</jats:target>In an ever more globalized financial market, investors are increasingly exposed to regulation and enforcement by multiple jurisdictions with varying rules, including different insider trading regimes. From a European perspective, potential exposure to the U. S. insider trading regime is particularly challenging. Especially for the non-U. S. practitioner, the U. S. insider prohibition is very complex and offers little legal certainty. And this uncertainty is all the more problematic for Europeans because the U. S. insider ban applies extraterritorially. Even more worrying, violations of the U. S. insider trading regime are often met with harsh consequences, ranging from stiff prison sentences to ruinous financial penalties. First, this article broadly outlines the contours of the U. S. insider trading regime as well as the current state of play for insider trading enforcement under U. S. law. Second, it outlines the fearsome (extra-) territorial reach of the U. S. insider trading ban, to allow a better assessment of a European’s potential exposure to the U. S. insider trading regime in different situations. Third, it highlights the main differences between the U. S. and the EU insider trading regulations, to identify the areas in which market participants on both sides of the Atlantic should be particularly cautious.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"2015 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2024-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139977663","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":"Insider Dealing by Outsiders in the U. S. and EU","authors":"Dörte Poelzig, Paul Dittrich","doi":"10.1515/ecfr-2023-0024","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0024","url":null,"abstract":"<jats:target target-type=\"next-page\">692</jats:target>The prohibition of insider dealing has its origins in U. S. law, the structural features of which have also influenced EU insider law. Today the dogmatic approaches of the two insider law systems differ diametrically. Particularly in dealing with investors outside the issuer, so-called outsiders, the two legal systems differ in terms of both the manner and the scope of covered transactions. According to our understanding outsiders are investors who, neither through their position within the issuer nor through the exercise of a profession for the issuer, have a relationship with the issuer that allows privileged access to inside information. We will lay out the differences between EU and U. S. law by reference to the recent decision of a U. S. Court in U. S. Securities and Exchange Commission (SEC) v. Panuwat, where the court approved the so-called shadow trading theory of the SEC. Whereas this decision has attracted a lot of attention in the U. S., we argue, that shadow trading is undoubtedly covered by EU insider law due to the broad principle of information parity. However, because of its broad scope EU insider law applies basically to all investors who possess inside information and hence may also prohibit transactions by outsiders which might be useful for capital markets, such as trading by financial analysts or whistle blowers. We will therefore scrutinize whether and how far financial analysts or whistleblowers are privileged by Recital 28 of the Market Abuse Regulation (MAR), which only applies to research based on publicly available data, but does not specify when information is publicly available.Whereas in regard to outsiders, the EU insider dealing law goes sometimes too far at the substantive level, in enforcement matters it is too restrictive on the other side. This becomes obvious when we look at politicians which are involved in legislation and hence have access to material information for many issuers. In the U. S., the SEC – acting as a driving force in the U. S. when it comes to the enforcement of the insider dealing prohibition – but also the legislator itself have already become active. Against this background, we examine what instruments EU insider law might provide to detect insider dealing by politicians and other outsiders and show that adapting and extending the existing rules may be a feasible way forward.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"5 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2023-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138564080","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 Crisis Management of Smaller Banks: Perspectives of Reform","authors":"Irene Mecatti","doi":"10.1515/ecfr-2023-0029","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0029","url":null,"abstract":"<jats:target target-type=\"next-page\">660</jats:target>The current common framework for bank crisis management and national deposit guarantee schemes (CMDI) is tailored for banks which are considered too big (or too complex) to fail. Smaller banks are de facto excluded from the application of resolution, even though they are obliged to contribute to its functioning. In practice, not even the size element has been decisive and the crises of significant as well as less significant institutions have been managed at the national level instead of within the framework and conditions foreseen by the BRRD. The consequent and persistent fragmentation in the European financial market requires that the dichotomy between resolution and liquidation be overcome and that the scope of resolution also include smaller banks. The paper analyses the main reforms needed to achieve this goal, including the European Commission’s recent proposal to revise the CMDI.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"17 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2023-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138559909","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 Menagerie of Organizational Forms in German Company Law","authors":"Holger Fleischer","doi":"10.1515/ecfr-2023-0027","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0027","url":null,"abstract":"<jats:target target-type=\"next-page\">593</jats:target>Company law lives and breathes with its different forms of association. Consequently, the emergence and evolution of these forms is a central topic of research for company law scholars. This paper seeks to depict the panoramic landscape of German company and partnership law. Special attention is given to new and rediscovered forms of association as well as to the various regulatory techniques used to introduce novel types of business association. In addition, a comparison with the foreign repertoire of organizational vehicles shows in which respects there may still be room for the creation of new forms of association in Germany.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"3 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2023-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138560028","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":"Say on What’s Next?","authors":"M. van Olffen, E.J. Breukink","doi":"10.1515/ecfr-2023-0028","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0028","url":null,"abstract":"<jats:target target-type=\"next-page\">745</jats:target>There are several initiatives aimed at getting listed companies to involve their shareholders more in ESG issues. Calls for mandatory advisory voting on (the implementation of) (parts of) ESG strategy and/or policy by the general meeting should not be heeded, according to the authors. We discuss this topic in a Dutch context. It is better to leave it to the management board, under the supervision of the supervisory board, to assess on a case-by-case basis whether it is in the company’s interest to have the general meeting vote on (part of) the ESG strategy or policy (or its implementation). Shareholders who are entitled to put items on the agenda cannot force an advisory vote on (a part of) the ESG strategy or ESG policy (or its implementation). In principle, however, they can have the aforementioned topics put on the agenda for discussion. Questions on ESG topics can be asked at the meeting. The scope for asking questions and the obligation to respond these questions partly depend on the agenda.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"69 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2023-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138564120","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}