In Commission v. Greece, the Court of Justice of the European Union examined Article 345 TFEU (ex Article 295 EC) on property ownership, in the context of golden shares of privatized companies. The neutrality of the EU towards privatizations is questioned. The scope and the outer limits of Article 345 TFEU are also scrutinized and a few distinctions are drawn. The decision whether to privatize and to introduce golden shares falls within the scope of Article 345 TFEU and outside the scope of fundamental freedoms, but the materialization of this decision and, as a matter of fact, the privatization process fall within the scope of fundamental freedoms. Recent developments on privatization prohibitions will also be discussed. This analysis will take place in the context of privatizations occurring in over-indebted Member States affected by the Eurozone crisis and having concluded bailout agreements. Emphasis will be placed on the Greek and Cyprus bailout agreements, where privatizations constitute an important part of the Economic Adjustment Programmes of these two Member States. Analysis of Article 345 TFEU will also cover corporatizations as an essential prerequisite for privatizations. The delineation of the boundaries between Article 345 TFEU and the fundamental freedoms constitutes a challenge for the bailout agreements and the privatization laws of over-indebted Member States.
{"title":"Privatized Companies, Golden Shares and Property Ownership in the Euro Crisis Era: A Discussion after Commission v. Greece","authors":"Thomas Papadopoulos","doi":"10.2139/ssrn.2635884","DOIUrl":"https://doi.org/10.2139/ssrn.2635884","url":null,"abstract":"In Commission v. Greece, the Court of Justice of the European Union examined Article 345 TFEU (ex Article 295 EC) on property ownership, in the context of golden shares of privatized companies. The neutrality of the EU towards privatizations is questioned. The scope and the outer limits of Article 345 TFEU are also scrutinized and a few distinctions are drawn. The decision whether to privatize and to introduce golden shares falls within the scope of Article 345 TFEU and outside the scope of fundamental freedoms, but the materialization of this decision and, as a matter of fact, the privatization process fall within the scope of fundamental freedoms. Recent developments on privatization prohibitions will also be discussed. This analysis will take place in the context of privatizations occurring in over-indebted Member States affected by the Eurozone crisis and having concluded bailout agreements. Emphasis will be placed on the Greek and Cyprus bailout agreements, where privatizations constitute an important part of the Economic Adjustment Programmes of these two Member States. Analysis of Article 345 TFEU will also cover corporatizations as an essential prerequisite for privatizations. The delineation of the boundaries between Article 345 TFEU and the fundamental freedoms constitutes a challenge for the bailout agreements and the privatization laws of over-indebted Member States.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"354 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115926857","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 United States faces a critical moment in environmental regulation. As tens of thousands of new unconventional, hydraulically fractured oil and gas wells spring up around the United States, we face a long-term threat of significant soil and water contamination. The current patchwork of state “command and control” regulations fails to prevent this contamination. Even in states with updated rules, sloppy operations have caused contamination events. Furthermore, thousands of abandoned wells, which can leak pollutants, already dot our landscape, and these numbers could rise over time as operators — the individuals and companies responsible for well development — drill and eventually abandon thousands of new wells each year.Command and control regulations will be an important first step to prevent contamination but cannot address all risks, particularly those for which industry has more knowledge than agencies. These limitations call for a market-based approach of bonding requirements and mandatory environmental liability insurance. An insurance regime will incentivize the party with the most knowledge of the risks — industry — to produce risk information, and it will spur third-party monitoring of risks by companies with a powerful monetary incentive to reduce claim events. Assurance bonds and insurance will also provide a pool of money to support later clean-up, which will be particularly important for disadvantaged areas that lack financial resources and political clout.
{"title":"A Market Approach to Regulating the Energy Revolution: Assurance Bonds, Insurance, and the Certain and Uncertain Risks of Hydraulic Fracturing","authors":"David A. Dana, H. Wiseman","doi":"10.2139/SSRN.2353061","DOIUrl":"https://doi.org/10.2139/SSRN.2353061","url":null,"abstract":"The United States faces a critical moment in environmental regulation. As tens of thousands of new unconventional, hydraulically fractured oil and gas wells spring up around the United States, we face a long-term threat of significant soil and water contamination. The current patchwork of state “command and control” regulations fails to prevent this contamination. Even in states with updated rules, sloppy operations have caused contamination events. Furthermore, thousands of abandoned wells, which can leak pollutants, already dot our landscape, and these numbers could rise over time as operators — the individuals and companies responsible for well development — drill and eventually abandon thousands of new wells each year.Command and control regulations will be an important first step to prevent contamination but cannot address all risks, particularly those for which industry has more knowledge than agencies. These limitations call for a market-based approach of bonding requirements and mandatory environmental liability insurance. An insurance regime will incentivize the party with the most knowledge of the risks — industry — to produce risk information, and it will spur third-party monitoring of risks by companies with a powerful monetary incentive to reduce claim events. Assurance bonds and insurance will also provide a pool of money to support later clean-up, which will be particularly important for disadvantaged areas that lack financial resources and political clout.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130518468","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 examines something of a puzzle: increasing access by UK issuers of high yield bonds to US investors notwithstanding substantive differences in the approach to valuation of the issuer in financial distress in US and UK restructuring law and, therefore, in anticipated return on default. It examines the development of the market in the context of existing theories on the relationship between law and finance and suggests that previous accounts have overlooked the adaptive capacity of the finance market to legal environment and the implications of such structural adaptation for the prospects of convergence in law. Three states are identified: a state in which the market is poorly adapted to the legal environment and reinforces other pressure for change, a state in which the market is adapted to the legal environment and is a neutral influence on, or even dampens, other pressure for change and a state in which both legacy and adapted structures exist, potentially pulling in different directions at the same time.
{"title":"The Adaptive Capacity of Markets and Convergence in Law: UK High Yield Issuers, US Investors and Insolvency Law","authors":"Sarah Paterson","doi":"10.1111/1468-2230.12123","DOIUrl":"https://doi.org/10.1111/1468-2230.12123","url":null,"abstract":"This article examines something of a puzzle: increasing access by UK issuers of high yield bonds to US investors notwithstanding substantive differences in the approach to valuation of the issuer in financial distress in US and UK restructuring law and, therefore, in anticipated return on default. It examines the development of the market in the context of existing theories on the relationship between law and finance and suggests that previous accounts have overlooked the adaptive capacity of the finance market to legal environment and the implications of such structural adaptation for the prospects of convergence in law. Three states are identified: a state in which the market is poorly adapted to the legal environment and reinforces other pressure for change, a state in which the market is adapted to the legal environment and is a neutral influence on, or even dampens, other pressure for change and a state in which both legacy and adapted structures exist, potentially pulling in different directions at the same time.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"553 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127090560","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 paper addresses recent changes in European succession law brought about by the European Commission’s "Regulation on jurisdiction, applicable law, recognition and enforcement of decisions in matters of succession." One of the most important issues that this Regulation addresses is the determination of the law applicable to a given succession for nationals of one member state with habitual residence in another member state. The Regulation provides that successions for those who die in this situation are governed by the law of the state in which they had their habitual residence at death. This paper questions whether the Regulation will simplify and reduce transaction costs in cross-border successions from two perspectives: First, from the perspective of whether the Regulation will increase or decrease the application of a given state's substantive succession law, and, second, from the perspective of the effect of its choice of laws rule on property entitlements given the variation in forced inheritance rules and clawback provisions across EU member states. These issues raise important questions about whether the Regulation will bring about the simplicity its drafters seek.
{"title":"Will Regulation 650/2012 Simplify Cross-Border Successions in Europe?","authors":"Mireia Artigot-Golobardes","doi":"10.2139/ssrn.2714874","DOIUrl":"https://doi.org/10.2139/ssrn.2714874","url":null,"abstract":"This paper addresses recent changes in European succession law brought about by the European Commission’s \"Regulation on jurisdiction, applicable law, recognition and enforcement of decisions in matters of succession.\" One of the most important issues that this Regulation addresses is the determination of the law applicable to a given succession for nationals of one member state with habitual residence in another member state. The Regulation provides that successions for those who die in this situation are governed by the law of the state in which they had their habitual residence at death. This paper questions whether the Regulation will simplify and reduce transaction costs in cross-border successions from two perspectives: First, from the perspective of whether the Regulation will increase or decrease the application of a given state's substantive succession law, and, second, from the perspective of the effect of its choice of laws rule on property entitlements given the variation in forced inheritance rules and clawback provisions across EU member states. These issues raise important questions about whether the Regulation will bring about the simplicity its drafters seek.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131469560","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}
Carl Schmitt's notion of nomos is commonly regarded as the international equivalent to the national sovereign's decision on the exception. But can concrete spatial order alone turn a constellation of forces into an international order? This article looks at Schmitt's work The Nomos of the Earth and proposes that it is the process of bracketing war called Hegung which takes the place of the sovereign in the international order Schmitt describes. Beginning from an analysis of nomos, the ordering function of the presocratic concept moira is explored. It is argued that the process of Hegung, like moira, does not just achieve the containment of war, but constitutes the condition of possibility for plural order.
{"title":"From Nomos to Hegung: Sovereignty and the Laws of War in Schmitt's International Order","authors":"Johanna Jacques","doi":"10.1111/1468-2230.12122","DOIUrl":"https://doi.org/10.1111/1468-2230.12122","url":null,"abstract":"Carl Schmitt's notion of nomos is commonly regarded as the international equivalent to the national sovereign's decision on the exception. But can concrete spatial order alone turn a constellation of forces into an international order? This article looks at Schmitt's work The Nomos of the Earth and proposes that it is the process of bracketing war called Hegung which takes the place of the sovereign in the international order Schmitt describes. Beginning from an analysis of nomos, the ordering function of the presocratic concept moira is explored. It is argued that the process of Hegung, like moira, does not just achieve the containment of war, but constitutes the condition of possibility for plural order.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115269444","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}
Rosalind Z. Wiggins, Natalia Tente, Andrew Metrick
In August 2007, Fortis Group, Belgium’s largest bank, acquired the Dutch operations of ABN AMRO, becoming the fifth largest bank in Europe. Despite its size and its significant operations in the Benelux countries, Fortis struggled to integrate ABN AMRO. Fortis’s situation worsened with the crash of the US subprime market, which impacted its subprime mortgage portfolio. By July 2008, Fortis’s CEO had stepped down, its stock had lost 70% of its value, and it was on the verge of collapse due to a severe liquidity crisis. The governments of Belgium, Luxembourg, and the Netherlands quickly came together and agreed to inject funding into the bank to keep it afloat. However, the deal fell apart when the Netherlands reversed course and nationalized Fortis’s Dutch assets. As a result, Fortis underwent an uncoordinated resolution, bifurcated along national lines. This case permits examination of this attempt at a cross-border rescue of a failing systemically important financial institution, analysis of why the effort failed, and consideration of how it might proceed differently under current regulations.
{"title":"European Banking Union C: Cross-Border Resolution–Fortis Group","authors":"Rosalind Z. Wiggins, Natalia Tente, Andrew Metrick","doi":"10.2139/SSRN.2577348","DOIUrl":"https://doi.org/10.2139/SSRN.2577348","url":null,"abstract":"In August 2007, Fortis Group, Belgium’s largest bank, acquired the Dutch operations of ABN AMRO, becoming the fifth largest bank in Europe. Despite its size and its significant operations in the Benelux countries, Fortis struggled to integrate ABN AMRO. Fortis’s situation worsened with the crash of the US subprime market, which impacted its subprime mortgage portfolio. By July 2008, Fortis’s CEO had stepped down, its stock had lost 70% of its value, and it was on the verge of collapse due to a severe liquidity crisis. The governments of Belgium, Luxembourg, and the Netherlands quickly came together and agreed to inject funding into the bank to keep it afloat. However, the deal fell apart when the Netherlands reversed course and nationalized Fortis’s Dutch assets. As a result, Fortis underwent an uncoordinated resolution, bifurcated along national lines. This case permits examination of this attempt at a cross-border rescue of a failing systemically important financial institution, analysis of why the effort failed, and consideration of how it might proceed differently under current regulations.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122465695","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 concept of the Tragedy of the Commons is well known, but it does not adequately capture the gravity of harm caused by the mismanagement of certain common pool resources (CPR). Not all commons are created equal; some are more important than others. If the common pasture where cows graze is overused and rendered barren, the community shifts to a vegan diet. But, if the groundwater aquifer used to grow soybeans and other foods is exhausted and no water remains for extraction, then individuals, families, and entire communities perish. Present commons scholarship is unable to differentiate between varying levels of importance among commons resources. I correct that problem by introducing the model of the Vital Commons. This is a type of CPR that is both vital to human existence and supports a massive population. The Earth’s atmosphere. Groundwater aquifer depletion. These are two examples of Vital Commons. Overuse of either creates a tragedy — but it appears like an apocalypse. The traditional response to tragic overuse of a commons is the creation of private property. Using this technique with a Vital Commons, however, makes things far worse and only expedites the coming catastrophe. Informal norms or principles of private ordering are also completely ineffective at sustaining the long-term health of a Vital Commons. Instead, the only answer to the tragedy of the Vital Commons is the wholesale removal of property rights to this essential and depleted resource.
{"title":"The Tragedy of the Vital Commons","authors":"M. Pearl","doi":"10.2139/ssrn.2574870","DOIUrl":"https://doi.org/10.2139/ssrn.2574870","url":null,"abstract":"The concept of the Tragedy of the Commons is well known, but it does not adequately capture the gravity of harm caused by the mismanagement of certain common pool resources (CPR). Not all commons are created equal; some are more important than others. If the common pasture where cows graze is overused and rendered barren, the community shifts to a vegan diet. But, if the groundwater aquifer used to grow soybeans and other foods is exhausted and no water remains for extraction, then individuals, families, and entire communities perish. Present commons scholarship is unable to differentiate between varying levels of importance among commons resources. I correct that problem by introducing the model of the Vital Commons. This is a type of CPR that is both vital to human existence and supports a massive population. The Earth’s atmosphere. Groundwater aquifer depletion. These are two examples of Vital Commons. Overuse of either creates a tragedy — but it appears like an apocalypse. The traditional response to tragic overuse of a commons is the creation of private property. Using this technique with a Vital Commons, however, makes things far worse and only expedites the coming catastrophe. Informal norms or principles of private ordering are also completely ineffective at sustaining the long-term health of a Vital Commons. Instead, the only answer to the tragedy of the Vital Commons is the wholesale removal of property rights to this essential and depleted resource.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128518145","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 assesses the effectiveness of United Kingdom age discrimination law in protecting older workers from claims that they are less productive and perform more poorly than younger workers. The article assesses employer perceptions and the incompatibility of such perceptions with existing research and the current interpretation of age discrimination law by the CJEU and the Supreme Court which accords with such research. The effectiveness of age discrimination law in practice is assessed through an analysis of existing compensation reduction rules. The article concludes that the existing rules which allow for a reduction in compensation payable where there is a chance that the same outcome would have been reached in the absence of discrimination (the ‘chance model’) reduces the effectiveness of the existing protections. A move to a ‘certainty model’ would be less speculative, would serve the objectives of anti‐discrimination law and would reduce concerns about compatibility with EU law.
{"title":"Are Older Workers Past Their Sell‐By‐Date? A View from UK Age Discrimination Law","authors":"E. Dewhurst","doi":"10.1111/1468-2230.12113","DOIUrl":"https://doi.org/10.1111/1468-2230.12113","url":null,"abstract":"This article assesses the effectiveness of United Kingdom age discrimination law in protecting older workers from claims that they are less productive and perform more poorly than younger workers. The article assesses employer perceptions and the incompatibility of such perceptions with existing research and the current interpretation of age discrimination law by the CJEU and the Supreme Court which accords with such research. The effectiveness of age discrimination law in practice is assessed through an analysis of existing compensation reduction rules. The article concludes that the existing rules which allow for a reduction in compensation payable where there is a chance that the same outcome would have been reached in the absence of discrimination (the ‘chance model’) reduces the effectiveness of the existing protections. A move to a ‘certainty model’ would be less speculative, would serve the objectives of anti‐discrimination law and would reduce concerns about compatibility with EU law.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"287 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114548139","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}
Thousands of consumer debtors pass through the bankruptcy process each year. Although their cases are legally complex, the bankruptcy system handles them in a routinized manner. Creditor and debtor attorneys rely heavily on forms in place of individualized pleadings, and many aspects of a debtor’s case are designed to function without direct judicial oversight. This system functions well, but it is not without limitation. Certain repeat players — large institutional lenders with hundreds of borrowers in bankruptcy — have exploited the absence of direct oversight to tilt the consumer bankruptcy process in their favor.This article is the second portion of my project on the use of class litigation to curb systematic creditor overreaching in bankruptcy. It considers the unique set of challenges presented by the class action device: namely, the rigorous requirements for class certification and the force of class action waivers in arbitration agreements. It finds that the prototypical debtor class action remains viable in the modern, anti-class-action framework. First, the force of class arbitration waivers can be muted in bankruptcy, as bankruptcy courts have broad discretion to deny arbitration of a matter when arbitration would “inherent[ly] conflict” with bankruptcy's aims. This article argues that courts should marshal their considerable discretion in applying the “inherent-conflict” analysis to deny arbitration of debtor class action proceedings when a class arbitration waiver is present. Second, debtor class action cases are strong candidates to run the ever-tightening gantlet of class certification.
{"title":"Vindicating Bankruptcy Rights","authors":"Kara J. Bruce","doi":"10.2139/ssrn.2566999","DOIUrl":"https://doi.org/10.2139/ssrn.2566999","url":null,"abstract":"Thousands of consumer debtors pass through the bankruptcy process each year. Although their cases are legally complex, the bankruptcy system handles them in a routinized manner. Creditor and debtor attorneys rely heavily on forms in place of individualized pleadings, and many aspects of a debtor’s case are designed to function without direct judicial oversight. This system functions well, but it is not without limitation. Certain repeat players — large institutional lenders with hundreds of borrowers in bankruptcy — have exploited the absence of direct oversight to tilt the consumer bankruptcy process in their favor.This article is the second portion of my project on the use of class litigation to curb systematic creditor overreaching in bankruptcy. It considers the unique set of challenges presented by the class action device: namely, the rigorous requirements for class certification and the force of class action waivers in arbitration agreements. It finds that the prototypical debtor class action remains viable in the modern, anti-class-action framework. First, the force of class arbitration waivers can be muted in bankruptcy, as bankruptcy courts have broad discretion to deny arbitration of a matter when arbitration would “inherent[ly] conflict” with bankruptcy's aims. This article argues that courts should marshal their considerable discretion in applying the “inherent-conflict” analysis to deny arbitration of debtor class action proceedings when a class arbitration waiver is present. Second, debtor class action cases are strong candidates to run the ever-tightening gantlet of class certification.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123960974","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}
China’s recent economic success is largely based on the vitality of its real estate market. But China does not permit fee simple ownership; rather, property developers build on land they have the right to use for seventy years or less. The government has not yet answered three critical questions it soon will face: Does the holder of a land use right have the right to renew it? If so, will the government charge for that renewal? And if so, how much?In predicting how the Chinese government will act, it is instructive to observe past government behavior. First, the government tries mightily to avoid social unrest and upheaval. Second, the government refrains from being the first party to act, preferring to endorse successful private sector experiments. Third, individual government officials and the government itself are important participants in the real estate market. If we assume these features will remain true, it becomes possible to predict how China will respond as large numbers of land use rights begins to approach their expiration dates. This Article discusses the renewability of the Chinese land use right; describes the government’s options when land use rights expire; examines how the government has behaved in the past in an effort to forecast how it will answer these renewability questions; and places the resolution of these important issues in the broader context of the uneven movement toward rule of law in China.
{"title":"What Will China Do When Land Use Rights Begin to Expire?","authors":"Gregory M. Stein","doi":"10.2139/SSRN.2565563","DOIUrl":"https://doi.org/10.2139/SSRN.2565563","url":null,"abstract":"China’s recent economic success is largely based on the vitality of its real estate market. But China does not permit fee simple ownership; rather, property developers build on land they have the right to use for seventy years or less. The government has not yet answered three critical questions it soon will face: Does the holder of a land use right have the right to renew it? If so, will the government charge for that renewal? And if so, how much?In predicting how the Chinese government will act, it is instructive to observe past government behavior. First, the government tries mightily to avoid social unrest and upheaval. Second, the government refrains from being the first party to act, preferring to endorse successful private sector experiments. Third, individual government officials and the government itself are important participants in the real estate market. If we assume these features will remain true, it becomes possible to predict how China will respond as large numbers of land use rights begins to approach their expiration dates. This Article discusses the renewability of the Chinese land use right; describes the government’s options when land use rights expire; examines how the government has behaved in the past in an effort to forecast how it will answer these renewability questions; and places the resolution of these important issues in the broader context of the uneven movement toward rule of law in China.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"83 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116071010","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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