European Company Law
Volume 6, 2009, Issue 4 [*]
Hanneke Wegman, EU Alternative Fund Regulation Proposal: Pros and Cons
Adriaan F.M. Dorresteijn, Odeaya Uziahu-Santcroos, The Societas Privata Europaea under the Magnifying Glass (Part 2)
Summary:
This is the second part of a two-part series on the Societas Privata Europaea (SPE). Whereas the first part concentrated on the proposal by the European Commission, this part deals with the proposals for amendments that have been made by the European Parliament in the last months of 2008 and in March 2009.
Erik Werlauff, A ‘Copenhagen Effect’? Denmark’s Answer to Centros: A Far-Reaching Company Law Reform Aimed at Strengthening the ‘Free Movement of Companies’
Summary:
In 2009, the Danish legislature introduced significant changes to Danish company law with the aim of making the rules on both public and private companies more flexible and thereby Denmark a competitive country for the establishment of companies. This could be called the Copenhagen effect. However, this effect could be increased by even further liberalization of Danish company law.
Bob Wessels, The Ongoing Struggle of Multinational Groups of Companies under the EC Insolvency Regulation
Summary:
In the application of the Insolvency Regulation, the centre of main interests (COMI) of a debtor determines which national court is competent in insolvency proceedings. The Regulation presumes that the COMI of a company is the place of its registered office. Such a presumption, however, could well be at odds in cases where a company is part of a multinational corporate group.
Rolf Dotevall J.S.D, Report from Sweden
Gert-Jan Vossestein, Hanneke Wegman, Survey of Legislation and Case Law, March and April 2009
Suna frumos, n’asha?, “cadre de conducere”. E vorba despre intreprinderi ce primesc ajutoare de stat sau care beneficiaza de sustinerea statului.
Decretul a fost adoptat “datorita faptului” (sic!) crizei economice actuale.
Asadar,
Décret n° 2009-348 du 30 mars 2009 relatif aux conditions de rémunération des dirigeants des entreprises aidées par l’Etat ou bénéficiant du soutien de l’Etat du fait de la crise économique et des responsables des entreprises publiques
aici.
Alessandra Zanardo {*}, Does the Application by Member States of the Commission Recommendations on Corporate Governance Issues Depend on the Diversity of Ownership Structures and Corporate Governance Systems?, December 24, 2008. Bocconi Legal Studies Research Paper No. 1320195. Available at SSRN.
In December 2004 and February 2005, the EC Commission adopted two Recommendations in order to foster an appropriate regime for the remuneration of directors of listed companies and to strengthen the role of non-executive or supervisory directors and of the committees of the (supervisory) board, respectively. In July 2007 the Commission published two Reports on the application by the Member States of both Recommendations. The objective of these Reports – which covered 21 Member States – was to evaluate whether the Member States had put in place the necessary framework in order to give effect to the main principles of the Recommendations and to analyse, in detail, the principles actually implemented by each country. The findings of the Commission’s evaluation reveal significant differences in the approach to these issues, in the level of application of the single provisions and, to some extent, in the means used to comply with the Recommendations. In this paper, I first analyse whether the level and the modalities of the implementation by the Member States actually depend on the diversity of share ownership structures, corporate governance systems and legal environment in European Union and, where relevant, to what extent. Second, I examine the need and appropriateness of using Recommendations (’soft law’) instead of Directives (‘hard law’) to promote the process of convergence of corporate governance rules and practices across the EU.
DIRK ZETZSCHE, SHAREHOLDER PASSIVITY, CROSS-BORDER VOTING AND THE SHAREHOLDER RIGHTS DIRECTIVE, Journal of Corporate Law Studies, Volume 8, Number 2, October 2008 , pp. 289-336(48) [*]
Abstract:
This paper focuses on the low cross-border turnout of shareholders at shareholder meetings of European issuers. It presents the data that are available on cross-border voting and examines the reasons behind the low cross-border turnout, in relative terms. Opposing the traditional view among US law and economics scholars, this paper holds that law matters in the efforts to facilitate cross-border voting. This is particularly true for procedural requirements. Thus, legislative action, such as the Shareholder Rights Directive, may indeed have beneficial effects on voting turnouts across Europe. The impact of the Shareholder Rights Directive on procedural costs of shareholders is examined in the second part of the paper. The Directive seeks to lessen procedural costs through the use of the internet. While it does not force a kick-start of EUMember States into the digital age, it constitutes a significant step forward in harmonising the procedure of shareholder meetings across Europe. From a procedural point of view, cross-border investors are likely to benefit from the legal certainty that the Directive provides, as well as the lower costs for the digital exercise of shareholder rights in those states which have previously refrained from implementing digital options for shareholders. In the third part of the paper, whether-and, if so, which-additional steps are necessary in order to further reduce procedural costs of cross-border voting is assessed. It is posited that the Shareholder Rights Directive failed to mandate an efficient regime to govern the identification and authorisation of shareholders who hold their shares within a chain of intermediaries, and four remedies to be taken by the European Parliament are suggested.
John Armour, David A. Skeel, The Divergence of U.S. and UK Takeover Regulation, Regulation, Vol. 30, No. 3, Fall 2007
Available at SSRN.
Abstract:
Hostile takeovers are commonly thought to play a key role in rendering managers accountable to dispersed shareholders. Yet, surprisingly little attention has been paid to the very significant differences in takeover regulation between the two most prominent practitioners of hostile takeover, the United Kingdom and the United States. In the UK, defensive tactics by target managers are prohibited, whereas in the United States, Delaware law gives managers a good deal of room to maneuver. We examine the evolution of the two regimes from a public choice perspective, and argue that the differences between the two countries is influenced by differences in the mode of regulation – that is, by who it is that does the regulating.
Alan Dignam and Michael Galanis, Corporate Governance and the Importance of Macroeconomic Context, Oxford Journal of Legal Studies 2008 28(2):201-243. [*]This article seeks to bring a focus to the significance of trade and finance in corporate governance outcomes. It explores the theoretical and historical link between micro-economic-level firm structure and macro-economic institutions such as trade and finance. The more open the economy, it argues, the more difficult it is in the long run to sustain an insider model. It then argues that changes in interdependent aspects of macro-economic policy in the UK and the US-primarily trade liberalization and the end of capital controls-combined with the presence of developed capital markets and a self-regulatory ethos, allowed institutional investors to refocus the market-level rules on shareholders despite the managerial bias of their legal systems, and enabled the emergence of the outsider shareholder-oriented systems present there today. The article then argues that core insider systems such as those in Germany and France operated with different financing arrangements which meant that they were less susceptible to immediate change. However, in the long run global economic conditions have continued to push shareholder-oriented norms on insider systems. The article concludes that if these conditions persist, then governments will lose, or may indeed already have lost, sovereignty with regard to choice of corporate governance system.
