This article analyses the particular role played by soft law instruments (such as codes of corporate governance, codes of conduct, model law and other non-binding instruments) in sharping the legal framework applicable to European and American companies. It concludes that soft law is a very popular and successful girl nowadays, for legitimate reasons, but one that brings about a series of concerns as well. This article finds that soft law instruments upset the traditional hierarchy of sources of law and the distinction between civil law and common law countries. It also observes that soft law converges, and, in turn, provokes further convergence of the legal framework. Finally, it exemplifies (and criticizes) instances of transformation of soft law into hard law, accompanied by a general phenomenon of hardening of the legal framework, including because instruments sometimes labelled ‘soft law’ are in reality closer in effect to hard law. soft law, company law, corporate governance codes, codes of conduct, directives, regulations, recommendations, green papers, comply or explain, EMCA, MBCA, ALI Principles
{"title":"Codes and Model Laws: A EU-US Comparison of Their Role in Shaping Company Law","authors":"Raluca Papadima","doi":"10.54648/eucl2022007","DOIUrl":"https://doi.org/10.54648/eucl2022007","url":null,"abstract":"This article analyses the particular role played by soft law instruments (such as codes of corporate governance, codes of conduct, model law and other non-binding instruments) in sharping the legal framework applicable to European and American companies. It concludes that soft law is a very popular and successful girl nowadays, for legitimate reasons, but one that brings about a series of concerns as well. This article finds that soft law instruments upset the traditional hierarchy of sources of law and the distinction between civil law and common law countries. It also observes that soft law converges, and, in turn, provokes further convergence of the legal framework. Finally, it exemplifies (and criticizes) instances of transformation of soft law into hard law, accompanied by a general phenomenon of hardening of the legal framework, including because instruments sometimes labelled ‘soft law’ are in reality closer in effect to hard law.\u0000soft law, company law, corporate governance codes, codes of conduct, directives, regulations, recommendations, green papers, comply or explain, EMCA, MBCA, ALI Principles","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49012711","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}
Russian corporate governance has traditionally been viewed as lacking in contrast to that of Western states. The major concern has been controlling shareholders’ expropriation of minority shareholders, especially in the setting of state-owned enterprises (SOEs). However, in recent years, the law and court treatment of minorities’ rights have taken a positive turn, drawing more investors to joint-stock companies (JSC), the Russian equivalent of US corporations. This article examines whether such developments sufficiently protect minority shareholders’ interests in the areas of (1) access to information, (2) controlling shareholder transactions, (3) takeovers by a controlling shareholder, and (4) dividend distributions. This article examines the formation and current state of the law and court practice in these areas, and proposes legislative reform, where appropriate. The article concludes that, although there is room for improvement, the law and the courts generally afford sufficient protections to minority investors, but the key factor that may boost the quality of corporate governance is minority shareholders’ active participation in corporate affairs, especially in the general meetings of shareholders. corporate governance, minority shareholder protection, Russian corporate law
{"title":"Do the Minority Shareholders of Russian Corporations Need More Protection?","authors":"Zhibek Mukhamedkarim","doi":"10.54648/eucl2022003","DOIUrl":"https://doi.org/10.54648/eucl2022003","url":null,"abstract":"Russian corporate governance has traditionally been viewed as lacking in contrast to that of Western states. The major concern has been controlling shareholders’ expropriation of minority shareholders, especially in the setting of state-owned enterprises (SOEs). However, in recent years, the law and court treatment of minorities’ rights have taken a positive turn, drawing more investors to joint-stock companies (JSC), the Russian equivalent of US corporations. This article examines whether such developments sufficiently protect minority shareholders’ interests in the areas of (1) access to information, (2) controlling shareholder transactions, (3) takeovers by a controlling shareholder, and (4) dividend distributions. This article examines the formation and current state of the law and court practice in these areas, and proposes legislative reform, where appropriate. The article concludes that, although there is room for improvement, the law and the courts generally afford sufficient protections to minority investors, but the key factor that may boost the quality of corporate governance is minority shareholders’ active participation in corporate affairs, especially in the general meetings of shareholders. corporate governance, minority shareholder protection, Russian corporate law","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47708817","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":"Having Company Law Fit More for a Digital Age","authors":"Dr Lina Mikalonienė","doi":"10.54648/eucl2022001","DOIUrl":"https://doi.org/10.54648/eucl2022001","url":null,"abstract":"","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42407100","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}
The European Banking Authority (EBA), one of the pillars of the European System of Financial Supervision, has a power to issue guidelines and recommendations, both representing soft-law instruments, in order to achieve effective and common regulatory and supervisory standards in the banking industry. In the recent decision (15 July 2021), the Court of Justice of the European Union clarified the power of the EBA to issue soft law instruments, a decision that has important repercussions on all European supervisory authorities. Court of Justice of the European Union, European Banking Authority
{"title":"The Broadening ‘Soft Law’ Powers of the European Banking Authority","authors":"Mariia Domina","doi":"10.54648/eucl2022004","DOIUrl":"https://doi.org/10.54648/eucl2022004","url":null,"abstract":"The European Banking Authority (EBA), one of the pillars of the European System of Financial Supervision, has a power to issue guidelines and recommendations, both representing soft-law instruments, in order to achieve effective and common regulatory and supervisory standards in the banking industry. In the recent decision (15 July 2021), the Court of Justice of the European Union clarified the power of the EBA to issue soft law instruments, a decision that has important repercussions on all European supervisory authorities.\u0000Court of Justice of the European Union, European Banking Authority","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46202635","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}
It is very common to encounter commercial law regulations designed towards encouraging shareholders to make long-term investments in different jurisdictions in response to the issue of short-termism. Until a few months ago, EU Shareholder Rights Directive was seen as the most effective step, which was put into effect as of 3 September 2020, as regards the encouragement of long-term shareholder engagement. However, when the latest developments are considered, a new era has just started in Spain with Law No. 5/2021, which entered into force on 3 May 2021, regarding the duties and responsibilities of managers to increase shareholders’ long-term loyalty to listed companies by complying with the modifications envisaged by Directive 2017/828. This study, in light of what has been covered hitherto, examines the amendments (reform) brought by Law No. 5/2021 as well as evaluating its possible effects on the functioning of company law. Spanish Corporate Law Reform, Short-Termism, Shareholder Activism
{"title":"Evolutionary Developments in Spanish Corporate Law","authors":"Fatih Buğra Erdem","doi":"10.54648/eucl2022002","DOIUrl":"https://doi.org/10.54648/eucl2022002","url":null,"abstract":"It is very common to encounter commercial law regulations designed towards encouraging shareholders to make long-term investments in different jurisdictions in response to the issue of short-termism. Until a few months ago, EU Shareholder Rights Directive was seen as the most effective step, which was put into effect as of 3 September 2020, as regards the encouragement of long-term shareholder engagement. However, when the latest developments are considered, a new era has just started in Spain with Law No. 5/2021, which entered into force on 3 May 2021, regarding the duties and responsibilities of managers to increase shareholders’ long-term loyalty to listed companies by complying with the modifications envisaged by Directive 2017/828. This study, in light of what has been covered hitherto, examines the amendments (reform) brought by Law No. 5/2021 as well as evaluating its possible effects on the functioning of company law.\u0000Spanish Corporate Law Reform, Short-Termism, Shareholder Activism","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48638208","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}
Pub Date : 2022-01-01DOI: 10.1017/9781108918992.024
{"title":"Capital Markets","authors":"","doi":"10.1017/9781108918992.024","DOIUrl":"https://doi.org/10.1017/9781108918992.024","url":null,"abstract":"","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"56926717","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":"Report from Greece: The New Corporate Governance Framework","authors":"Alexandros L. Seretakis","doi":"10.54648/eucl2021026","DOIUrl":"https://doi.org/10.54648/eucl2021026","url":null,"abstract":"","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44239101","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}
This article discusses the regulatory discretion of competent national authorities as a mechanism to prevent financial crises, on the example of investment funds and their managers. The ability to impose stricter conditions on fund managers and define the procedures for efficient intervention allows responding efficiently to the financial shocks. Whilst EU law cannot respond quickly enough to the changes in financial markets, Member States and their respective regulatory authorities can provide for a tailor-made approach for each fund and its manager registered within their territories. AIFMD, financial markets authorities, investment funds (managers), MiFID II
本文以投资基金及其管理者为例，讨论了国家主管部门的监管自由裁量权作为预防金融危机的机制。能够对基金经理施加更严格的条件，并确定有效干预的程序，从而能够有效应对金融冲击。虽然欧盟法律无法对金融市场的变化做出足够快的反应，但成员国及其各自的监管机构可以为在其领土内注册的每只基金及其管理人提供量身定制的方法。AIFMD、金融市场管理机构、投资基金（经理）、MiFID II
{"title":"Regulatory Discretion in Financial Markets Law: An Effective Remedy Against Financial Crises?","authors":"Mariia Domina","doi":"10.54648/eucl2021024","DOIUrl":"https://doi.org/10.54648/eucl2021024","url":null,"abstract":"This article discusses the regulatory discretion of competent national authorities as a mechanism to prevent financial crises, on the example of investment funds and their managers. The ability to impose stricter conditions on fund managers and define the procedures for efficient intervention allows responding efficiently to the financial shocks. Whilst EU law cannot respond quickly enough to the changes in financial markets, Member States and their respective regulatory authorities can provide for a tailor-made approach for each fund and its manager registered within their territories.\u0000AIFMD, financial markets authorities, investment funds (managers), MiFID II","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42785938","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}
The paper focuses on the evolution of the legal regime concerning Foreign Direct Investments (FDIs) both in the EU law and in national law, with special regard for Italy, where special powers on FDIs were recently activated to block Chinese investments. The paper, in the first place, sketches a brief overview on the evolution of such special powers in the last two decades within the EU; in the second place, it assesses the current legal regime at EU level in light of the changes brought by the Covid crisis. At the same time, the paper develops a comparative analysis between the European regime on FDIs and the Chinese one, in order to outline the main legal issues connected to the notion of public control over enterprises investing abroad. Foreign Direct Investments, Investment Regulation, Foreign Subsidies, Chinese Investments, Reg. 452/2019, Covid-related Economic Crisis, State Capitalism, EU-China Economic Relations, Industrial Policy, Golden Shares
{"title":"The ‘Golden Power’ on Foreign Investments in EU Law in the Light of Covid Crisis","authors":"G. Sabatino","doi":"10.54648/eucl2021025","DOIUrl":"https://doi.org/10.54648/eucl2021025","url":null,"abstract":"The paper focuses on the evolution of the legal regime concerning Foreign Direct Investments (FDIs) both in the EU law and in national law, with special regard for Italy, where special powers on FDIs were recently activated to block Chinese investments. The paper, in the first place, sketches a brief overview on the evolution of such special powers in the last two decades within the EU; in the second place, it assesses the current legal regime at EU level in light of the changes brought by the Covid crisis. At the same time, the paper develops a comparative analysis between the European regime on FDIs and the Chinese one, in order to outline the main legal issues connected to the notion of public control over enterprises investing abroad.\u0000Foreign Direct Investments, Investment Regulation, Foreign Subsidies, Chinese Investments, Reg. 452/2019, Covid-related Economic Crisis, State Capitalism, EU-China Economic Relations, Industrial Policy, Golden Shares","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47756392","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":"Privatizing Investment Control: A Renaissance for Restricted Shares?","authors":"S. Hindelang, Jens Hillebrand Pohl","doi":"10.54648/eucl2021023","DOIUrl":"https://doi.org/10.54648/eucl2021023","url":null,"abstract":"","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41610634","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}
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