The essential thesis of this paper is that while Indian corporate law began as a legal transplant from England, it has been progressively decoupled from its source with subsequent amendments and reforms being focused either on finding solutions to local problems or borrowing from other jurisdictions. To that extent, decolonization has had a significant effect of radically altering the course of Indian corporate law. Current Indian corporate law not only represents a significant departure from its colonial origins, but the divergence between Indian law and English law as they have developed since independence has been increasing. While the Indian lawmaking process indulged in close cross-referencing of English legal provisions during the colonial period and immediately thereafter, the more contemporary legislative reforms pay scant regard to corporate law in the origin country that initially shaped Indian corporate law. This offers valuable lessons. First, even though India is considered to be part of the “common law” family, corporate law has evolved somewhat differently from the origin country, England. In that sense, it casts significant doubt on the assumption that all countries within a legal family bear similarities. On the contrary, each host country may follow a trajectory that is different from that followed by the origin country of corporate law. Second, it supports the proposition that legal transplants can be challenging unless the local conditions in the host country are similar to that in the origin country. Variations in economic, social, political and cultural factors may bring about dissonance in the operation of a transplanted legal system. Third, a comparison of the historical colonial experience in the functioning of the transplanted legal system and the more contemporary experience in the post-colonial period suggests fragility in the foundations of the transplant.
{"title":"The Evolution of Corporate Law in Post-Colonial India: From Transplant to Autochthony","authors":"Umakanth Varottil","doi":"10.2139/ssrn.2557809","DOIUrl":"https://doi.org/10.2139/ssrn.2557809","url":null,"abstract":"The essential thesis of this paper is that while Indian corporate law began as a legal transplant from England, it has been progressively decoupled from its source with subsequent amendments and reforms being focused either on finding solutions to local problems or borrowing from other jurisdictions. To that extent, decolonization has had a significant effect of radically altering the course of Indian corporate law. Current Indian corporate law not only represents a significant departure from its colonial origins, but the divergence between Indian law and English law as they have developed since independence has been increasing. While the Indian lawmaking process indulged in close cross-referencing of English legal provisions during the colonial period and immediately thereafter, the more contemporary legislative reforms pay scant regard to corporate law in the origin country that initially shaped Indian corporate law. This offers valuable lessons. First, even though India is considered to be part of the “common law” family, corporate law has evolved somewhat differently from the origin country, England. In that sense, it casts significant doubt on the assumption that all countries within a legal family bear similarities. On the contrary, each host country may follow a trajectory that is different from that followed by the origin country of corporate law. Second, it supports the proposition that legal transplants can be challenging unless the local conditions in the host country are similar to that in the origin country. Variations in economic, social, political and cultural factors may bring about dissonance in the operation of a transplanted legal system. Third, a comparison of the historical colonial experience in the functioning of the transplanted legal system and the more contemporary experience in the post-colonial period suggests fragility in the foundations of the transplant.","PeriodicalId":174628,"journal":{"name":"English Law: Business (Topic)","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130813258","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 assesses the debt restructuring mechanisms available to companies in English law, compares these mechanisms with the Chapter 11 procedure in the US, and makes some suggestions for reform of the English system in this context. Rehabilitating a company in financial difficulties will almost always be preferable to liquidation for companies and their creditors, at least where the company is merely financially distressed, i.e. it is cash flow insolvent but nevertheless economically viable, so that there is a business worth saving. Five debt restructuring mechanisms are available to companies in English law: workouts, Company Voluntary Arrangements (CVAs), schemes of arrangement, administration and, lastly, a recent innovation of practitioners has been to twin a scheme of arrangement with administration. None of these devices are ideal as debt restructuring tools, as explained in this paper. Lessons can be learned from the US Chapter 11 process, although a simple transplantation of this procedure into English law is not recommended, as there are also disadvantages to the US procedure. Instead it is suggested that the English scheme of arrangement be reformed to allow a cramdown of whole classes to take place, to attach a moratorium to this procedure and to enhance the valuation process where restructuring takes place. Making these changes would provide English law with a stronger and more effective debt restructuring procedure.
{"title":"Debt Restructuring in English Law: Lessons from the US and the Need for Reform","authors":"J. Payne","doi":"10.2139/ssrn.2321615","DOIUrl":"https://doi.org/10.2139/ssrn.2321615","url":null,"abstract":"This paper assesses the debt restructuring mechanisms available to companies in English law, compares these mechanisms with the Chapter 11 procedure in the US, and makes some suggestions for reform of the English system in this context. Rehabilitating a company in financial difficulties will almost always be preferable to liquidation for companies and their creditors, at least where the company is merely financially distressed, i.e. it is cash flow insolvent but nevertheless economically viable, so that there is a business worth saving. Five debt restructuring mechanisms are available to companies in English law: workouts, Company Voluntary Arrangements (CVAs), schemes of arrangement, administration and, lastly, a recent innovation of practitioners has been to twin a scheme of arrangement with administration. None of these devices are ideal as debt restructuring tools, as explained in this paper. Lessons can be learned from the US Chapter 11 process, although a simple transplantation of this procedure into English law is not recommended, as there are also disadvantages to the US procedure. Instead it is suggested that the English scheme of arrangement be reformed to allow a cramdown of whole classes to take place, to attach a moratorium to this procedure and to enhance the valuation process where restructuring takes place. Making these changes would provide English law with a stronger and more effective debt restructuring procedure.","PeriodicalId":174628,"journal":{"name":"English Law: Business (Topic)","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-01-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127749956","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 considers the New York State Supreme Court Decision in HSH Nordbank AG v UBS AG 2012 NY Slip OP 02276 and draws parallels with similar decisions reached in the UK.
本文考虑纽约州最高法院在HSH Nordbank AG诉UBS AG 2012 NY Slip OP 02276案中的判决，并将其与英国达成的类似判决进行比较。
{"title":"HSH v. UBS – Lessons from New York","authors":"Vincenzo Bavoso","doi":"10.2139/ssrn.2281894","DOIUrl":"https://doi.org/10.2139/ssrn.2281894","url":null,"abstract":"This article considers the New York State Supreme Court Decision in HSH Nordbank AG v UBS AG 2012 NY Slip OP 02276 and draws parallels with similar decisions reached in the UK.","PeriodicalId":174628,"journal":{"name":"English Law: Business (Topic)","volume":"2010 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125627206","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}
Grimaldi v Chameleon Mining NL (No 2) is a sumptuous case for teachers and students of fiduciary law. Its facts give rise to the whole range of issues associated with breaches of fiduciary obligations. This note considers the question of ‘appropriate’ relief in the pursuit of ‘practical justice’ which is reviewed at length by the Federal Court. There is apparently ‘a level of predictability to the award of remedy in routine cases’ obtained from the ‘mixture of learning, intuition and experience’ in light of the ‘purpose of a doctrine.’ Although there are no rights to particular remedies, it is ‘the case that, in many instances and for many types of equitable wrong, the remedy that is the most appropriate will self-select absent unusual circumstances’.
{"title":"Practical Justice and Appropriate Relief: Grimaldi v Chameleon Mining Nl (No 2)","authors":"Nyuk Nahan","doi":"10.2139/SSRN.2177453","DOIUrl":"https://doi.org/10.2139/SSRN.2177453","url":null,"abstract":"Grimaldi v Chameleon Mining NL (No 2) is a sumptuous case for teachers and students of fiduciary law. Its facts give rise to the whole range of issues associated with breaches of fiduciary obligations. This note considers the question of ‘appropriate’ relief in the pursuit of ‘practical justice’ which is reviewed at length by the Federal Court. There is apparently ‘a level of predictability to the award of remedy in routine cases’ obtained from the ‘mixture of learning, intuition and experience’ in light of the ‘purpose of a doctrine.’ Although there are no rights to particular remedies, it is ‘the case that, in many instances and for many types of equitable wrong, the remedy that is the most appropriate will self-select absent unusual circumstances’.","PeriodicalId":174628,"journal":{"name":"English Law: Business (Topic)","volume":"87 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133559565","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 : 2011-07-01DOI: 10.1111/j.1467-8543.2010.00799.x
Wang-Sheng Lee, Sandy Suardi
The time-series approach used in the minimum wage literature essentially aims to estimate a treatment effect of increasing the minimum wage. In this paper, we employ a novel approach based on aggregate time-series data that allows us to determine if minimum wage changes have significant effects on employment. This involves the use of tests for structural breaks as a device for identifying discontinuities in the data which potentially represent treatment effects. In an application based on Australian data, the tentative conclusion is that the introduction of minimum wage legislation in Australia in 1997 and subsequent minimum wage increases appear not to have had any significant negative employment effects for teenagers.
{"title":"Minimum Wages and Employment: Reconsidering the Use of a Time Series Approach as an Evaluation Tool","authors":"Wang-Sheng Lee, Sandy Suardi","doi":"10.1111/j.1467-8543.2010.00799.x","DOIUrl":"https://doi.org/10.1111/j.1467-8543.2010.00799.x","url":null,"abstract":"The time-series approach used in the minimum wage literature essentially aims to estimate a treatment effect of increasing the minimum wage. In this paper, we employ a novel approach based on aggregate time-series data that allows us to determine if minimum wage changes have significant effects on employment. This involves the use of tests for structural breaks as a device for identifying discontinuities in the data which potentially represent treatment effects. In an application based on Australian data, the tentative conclusion is that the introduction of minimum wage legislation in Australia in 1997 and subsequent minimum wage increases appear not to have had any significant negative employment effects for teenagers.","PeriodicalId":174628,"journal":{"name":"English Law: Business (Topic)","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"118076404","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 considers the interaction of financial statements with the Australian consideration of when a company is insolvent.
本文考虑了财务报表与澳大利亚考虑公司何时资不抵债的相互作用。
{"title":"The Implications of Financial Statements around Insolvency","authors":"D. Morrison","doi":"10.2139/SSRN.1679288","DOIUrl":"https://doi.org/10.2139/SSRN.1679288","url":null,"abstract":"This paper considers the interaction of financial statements with the Australian consideration of when a company is insolvent.","PeriodicalId":174628,"journal":{"name":"English Law: Business (Topic)","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116146452","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 two-part article considers the extent to which UK company law and takeover regulation may have contributed to the supposed short-termism exercised by target directors in takeovers, that is, target directors focusing only on short-term financial gain to the current shareholders, rather than the target’s long-term wealth creation. This article argues that general company law and takeover regulation do not mandate target directors to strictly prioritise the short-term financial interests of the company when determining whether to recommend a particular takeover bid. While company law and takeover regulation require the target board to consider stakeholders’ interests, neither shareholders nor stakeholders have an enforceable right of action against the directors in connection with their failure to do so.
{"title":"Takeovers and Countering Short-Termism in Target Boardrooms","authors":"W. Wan","doi":"10.2139/SSRN.2319272","DOIUrl":"https://doi.org/10.2139/SSRN.2319272","url":null,"abstract":"This two-part article considers the extent to which UK company law and takeover regulation may have contributed to the supposed short-termism exercised by target directors in takeovers, that is, target directors focusing only on short-term financial gain to the current shareholders, rather than the target’s long-term wealth creation. This article argues that general company law and takeover regulation do not mandate target directors to strictly prioritise the short-term financial interests of the company when determining whether to recommend a particular takeover bid. While company law and takeover regulation require the target board to consider stakeholders’ interests, neither shareholders nor stakeholders have an enforceable right of action against the directors in connection with their failure to do so.","PeriodicalId":174628,"journal":{"name":"English Law: Business (Topic)","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116872371","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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