Firms file for bankruptcy reorganization (Chapter 11) not only to restructure debt but also to restructure labor contracts. Starting from this observation, I build a theory where shareholders weigh the cost of restructuring labor contracts against their claims on the going-concern value of the firm. In this environment, pro-creditor bankruptcy reforms face a trade-off. Upon successful reorganization, creditors recover more at the expenses of the other stake-holders: shareholders get a smaller share of the firm’s value, have less incentives to restructure labor contracts, making more likely that reorganizations fail and firms get inefficiently liquidated. As a result, expected recovery values can actually fall, increasing the cost of debt. I characterize this trade-off in a static model and show analytically that the optimal level of creditor rights decreases with the bargaining power of the workers. I test the positive implications of the theory in the U.S. data by exploiting a shift towards a more creditor-friendly Chapter 11 in 2001 and heterogeneity in right-to-work (RTW) labor laws. I estimate a firm dynamic model to the pre-2001 period, and gauge a significant asymmetric effect of the shift in the creditor rights on RTW vis-a-vis non-RTW region.
{"title":"Bankruptcy Reforms When Workers Extract Rents","authors":"Alessandro Peri","doi":"10.2139/ssrn.2833669","DOIUrl":"https://doi.org/10.2139/ssrn.2833669","url":null,"abstract":"Firms file for bankruptcy reorganization (Chapter 11) not only to restructure debt but also to restructure labor contracts. Starting from this observation, I build a theory where shareholders weigh the cost of restructuring labor contracts against their claims on the going-concern value of the firm. In this environment, pro-creditor bankruptcy reforms face a trade-off. Upon successful reorganization, creditors recover more at the expenses of the other stake-holders: shareholders get a smaller share of the firm’s value, have less incentives to restructure labor contracts, making more likely that reorganizations fail and firms get inefficiently liquidated. As a result, expected recovery values can actually fall, increasing the cost of debt. I characterize this trade-off in a static model and show analytically that the optimal level of creditor rights decreases with the bargaining power of the workers. I test the positive implications of the theory in the U.S. data by exploiting a shift towards a more creditor-friendly Chapter 11 in 2001 and heterogeneity in right-to-work (RTW) labor laws. I estimate a firm dynamic model to the pre-2001 period, and gauge a significant asymmetric effect of the shift in the creditor rights on RTW vis-a-vis non-RTW region.","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128402672","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 German Bundestag has adopted the Small Investor Protection Act on 23 April 2015. This article describes the content of the act as relevant to crowdfunding, identifies its probable consequences, and examines the most important rules with respect to their regulatory effects.
{"title":"The Regulation of Crowdfunding in the German Small Investor Protection Act: Content, Consequences, Critique, Suggestions","authors":"Lars Klöhn, Lars Hornuf, Tobias Schilling","doi":"10.54648/eucl2016009","DOIUrl":"https://doi.org/10.54648/eucl2016009","url":null,"abstract":"The German Bundestag has adopted the Small Investor Protection Act on 23 April 2015. This article describes the content of the act as relevant to crowdfunding, identifies its probable consequences, and examines the most important rules with respect to their regulatory effects.","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117257879","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}
A Corporation is an artificial juristic person in the eyes of the law. It undergoes an inherent metamorphosis as a part of the business cycle. Despite conflicting view by noted experts, if one draws a human analogy, a corporation too takes birth at incorporation and attains its optimum splendor by wealth maximization. It at times suffers from 'ailing financial health' which is termed as 'corporate insolvency' and just like medication, tools like 'corporate rescue' are used to revive the financial ill health of a corporation. Corporate Insolvency resembles to the state of affairs when a company is unable to pay its debts. Various causes for insolvency include under-capitalization, over-trading, overleveraging apart from others. The legal framework to determine corporate insolvency and its economic analysis reveals three major problems - coordination, ex-ante efficiency and ex-post efficiency. A right balance of incentives and disincentives for ensuring a creditor-debtor friendly insolvency law should be the aim. However, imbalance in these incentives tend to render these laws inefficient. Also, impetus to corporate rescue mechanisms supplement the structure of corporate insolvency law and hence a structured hassle free mechanism should be implemented. On the Indian front, the absence of a single code prescribing mechanisms to deal with corporate insolvency and corporate rescue and the omnipresence of a web of legislations on the same, the efficiency and efficacy of these apparatus gets compromised. India had the Companies Act, 1956, Sick Industrial Companies (Special Provisions) Act, 1985 which has undergone a complete overhaul in the form of the Companies Act, 2013. Especially when India today seeks to increase its 'Ease of Doing Business' Ranking to lure investors a novel corporate insolvency and rescue model needs to be developed by resorting to global convergence in terms of acceptance of best practices from the international fraternity with a economic analysis in order to ensure existence of an efficacious corporate insolvency code. Please note that the said paper was written prior to the enactment of the Insolvency and Bankruptcy Code, 2016.
{"title":"Corporate Insolvency and Corporate Recue in India - An Economic Analysis","authors":"P. Pandya","doi":"10.2139/SSRN.2970582","DOIUrl":"https://doi.org/10.2139/SSRN.2970582","url":null,"abstract":"A Corporation is an artificial juristic person in the eyes of the law. It undergoes an inherent metamorphosis as a part of the business cycle. Despite conflicting view by noted experts, if one draws a human analogy, a corporation too takes birth at incorporation and attains its optimum splendor by wealth maximization. It at times suffers from 'ailing financial health' which is termed as 'corporate insolvency' and just like medication, tools like 'corporate rescue' are used to revive the financial ill health of a corporation. \u0000Corporate Insolvency resembles to the state of affairs when a company is unable to pay its debts. Various causes for insolvency include under-capitalization, over-trading, overleveraging apart from others. The legal framework to determine corporate insolvency and its economic analysis reveals three major problems - coordination, ex-ante efficiency and ex-post efficiency. A right balance of incentives and disincentives for ensuring a creditor-debtor friendly insolvency law should be the aim. However, imbalance in these incentives tend to render these laws inefficient. Also, impetus to corporate rescue mechanisms supplement the structure of corporate insolvency law and hence a structured hassle free mechanism should be implemented. \u0000On the Indian front, the absence of a single code prescribing mechanisms to deal with corporate insolvency and corporate rescue and the omnipresence of a web of legislations on the same, the efficiency and efficacy of these apparatus gets compromised. India had the Companies Act, 1956, Sick Industrial Companies (Special Provisions) Act, 1985 which has undergone a complete overhaul in the form of the Companies Act, 2013. Especially when India today seeks to increase its 'Ease of Doing Business' Ranking to lure investors a novel corporate insolvency and rescue model needs to be developed by resorting to global convergence in terms of acceptance of best practices from the international fraternity with a economic analysis in order to ensure existence of an efficacious corporate insolvency code. \u0000Please note that the said paper was written prior to the enactment of the Insolvency and Bankruptcy Code, 2016.","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"29 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":"124696340","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}
Fraud and misconduct in financial markets have recently become a key regulatory issue against the backdrop of the financial crisis. This paper investigates the sanctions policy and practices of the French financial regulator, Autorite des Marches Financiers (AMF). It argues that, over time, the AMF has shifted from substantive to procedural regulation of finance. This shift consists in departing from sanctions based on observed outcomes in the market and, instead, assessing how the internal organizational schemes of financial firms actually perform. The AMF's new policy and practice involves a process of legalization of organizations; it also evidences a tendency to delegate regulation to financial firms themselves
{"title":"The Regulatory Practice of the French Financial Markets Authority, 2006-2011. From Substantive to Procedural Financial Regulation?","authors":"Thierry Kirat, F. Marty","doi":"10.2139/ssrn.2623442","DOIUrl":"https://doi.org/10.2139/ssrn.2623442","url":null,"abstract":"Fraud and misconduct in financial markets have recently become a key regulatory issue against the backdrop of the financial crisis. This paper investigates the sanctions policy and practices of the French financial regulator, Autorite des Marches Financiers (AMF). It argues that, over time, the AMF has shifted from substantive to procedural regulation of finance. This shift consists in departing from sanctions based on observed outcomes in the market and, instead, assessing how the internal organizational schemes of financial firms actually perform. The AMF's new policy and practice involves a process of legalization of organizations; it also evidences a tendency to delegate regulation to financial firms themselves","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126952774","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}
Separating the value-increasing takeovers from the value-decreasing takeovers is the ideal goal in designing the legal rule on takeovers. The previous studies showed that the Mandatory Bid Rule stops all of the inefficient sales of corporate control. However, this paper, by using the negative private benefits model, refutes this proposition which assumes that private benefits of control are positive. To justify the assumption of negative private benefits, this study examines two events that the standard model cannot explain, but the negative private benefits model does. The Mandatory Bid Rule is not a perfect screen to stop inefficient takeovers.
{"title":"Inefficient Sales of Corporate Control Under Mandatory Bid Rule","authors":"Hidefusa Iida","doi":"10.2139/ssrn.2581374","DOIUrl":"https://doi.org/10.2139/ssrn.2581374","url":null,"abstract":"Separating the value-increasing takeovers from the value-decreasing takeovers is the ideal goal in designing the legal rule on takeovers. The previous studies showed that the Mandatory Bid Rule stops all of the inefficient sales of corporate control. However, this paper, by using the negative private benefits model, refutes this proposition which assumes that private benefits of control are positive. To justify the assumption of negative private benefits, this study examines two events that the standard model cannot explain, but the negative private benefits model does. The Mandatory Bid Rule is not a perfect screen to stop inefficient takeovers.","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122597838","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}
Korean Abstract: 우리은행은 2005~ 2006년에 여러 은행들(실제로는 그 은행들이 설립한 역외 SPV들)이 발행한 부채담보부 증권(“CDO”)에 약 15억 US달러를 투자하였는데, 그 CDO 는 미국에서 발행된 주택담보부 증권과 연계되어 있었다. 2007~2008년 금융위기의 여파로 우리은행은 그 투자금의 대부분을 대손처리하였고, 시티그룹, 메릴린치, 로열뱅크 오브 스코트랜드, 기타 금융기관을 상대로 미국연방법원에 소송을 제기하였다. 우리은행은 불행하게도 위 소송에서 미연방민사절차규정 §9(b) 조항의 강화된 청구내용요건을 충족시키지 못하였다거나 한국 민법 제766조의 소멸시효규정에 의하여 시효가 완성되었다는 이유로 청구기각 판결을 받았다. 우리 은행의 이러한 청구 기각 결과는, 몇몇 해외 펀드가 거의 동일한 사실관계 하에서, 같은 은행들을 상대로 뉴욕주법원에 제기한 다른 소송들과 분명한 대조를 이루는데, 다른 소송들에서는 민사절차규정 §9(b)를 근거로 한 청구기각 신청이 받아들여지지 않았다. 나아가 우리은행 법원들이 우리은행 사건에 대하여 한국민법의 소멸시효 규정을 잘못 적용하였을 수도 있다. 한편 우리은행의 CDO매입계약들은 모두 뉴욕주법을 준거법으로, 뉴욕법원을 합의관할법원으로 정한 것으로 보이나, 우리은행은 위 소송을 ‘자본시장과 금융투자업에 관한 법률’에 의하여 한국에서 제기할 수도 있었다고 보여진다. 이 사건은 또한 해외 사모증권의 투자자들은 더 이상 뉴욕주법을 준거법으로, 뉴욕법원을 합의관할로 정하는 것을 당연시 하여서는 안 되고, 거래가 일어나는 곳의 법률을 준거법으로, 그곳의 관할법원을 합의관할로 채택하여야 할 필요성을 시사한다.English Abstract: Woori Bank of Korea invested about $1.5 billion in 2005 and 2006 in collateralized debt securities ("CDO") issued by various banks (actually, their offshore SPVs) and linked to mortgage backed securities issued in the U.S. In the aftermath of the financial crisis in 2007-2008, Woori Bank wrote off most of the investment and brought actions in the U.S. federal court against Citigroup, Merrill Lynch, Royal Bank of Scotland, and others. Unfortunately for Woori Bank, its suits were dismissed with prejudice for failure to meet the heightened pleading requirements under §9(b) of the Federal Rules of Civil Procedure or being time barred under §766 of the Korean Civil Code. It appears that the purchase agreements under which Woori Bank purchased the CDOs all specified New York law and courts as their governing law and venue. The dismissals are in sharp contrast to several other litigations which were brought by several foreign funds against the same banks, under almost identical fact patterns, in New York State Courts, that have been sustained over similar motions to dismiss for failure to meet the §9(b) pleading requirements. And, the findings by the Woori courts that Woori Bank was time barred under the Korean Civil Code may have been incorrect. In addition, Woori Bank may have been able to bring the claims in Korea under the Financial Investment Services and Capital Markets Act of Korea. This case also strongly suggests that investors in securities in private offerings abroad should no longer accept the New York law and venue as matter of course and require governing law and venue of the jurisdiction where the transaction takes place.
友利银行在2005年至2006年向多家银行(实际上是这些银行设立的境外SPV)发行的债务担保证券(CDO)投资了约15亿美元，该证券与美国发行的住房担保证券有联系。受2007年至2008年金融危机的影响，友利银行将大部分投资资金作为坏帐处理，并向美国联邦法院起诉花旗集团、美林银行、苏格兰皇家银行和其他金融机构。不幸的是，友利银行在上述诉讼中，以没有满足美国联邦民事程序规定§9(b)条款强化的请求内容要件或根据韩国民法第766条的消灭时效规定，时效已经结束为由，被驳回请求。我们银行的这种结果驳回请求,一些海外基金在几乎同一事实关系,同一银行面向纽约州法院提出的其他诉讼和明确的对比,在其他诉讼,民事程序规定§9 (b)为根据的请求被驳回的申请没有被采纳。进一步说，友利银行法院对友利银行事件错误适用了韩国国民法的消灭时效规定。另外，友利银行的CDO收购合同似乎都以纽约州法律为依据，将纽约法院定为协议管辖法院，但友利银行可以根据《资本市场和金融投资业相关法律》在韩国提出上述诉讼。这个案子也是海外私募证券的投资者不再是纽约以州法律为准绳为法,以纽约法院定为协议管辖的不得被视为当然,交易的地方发生的以法律为准绳,那里的法律管辖法院应当协议管辖通过暗示的必要性。english abstract:银行Bank of Korea invested about 1.5 billion in 2005 and 2006 in collateralized debt securities (CDO) issued by various banks (actually，the u.s. in the aftermath of the financial crisis in 2007-2008;银行银行wrote off most of the investment and brought actions in the u.s. federal court against Citigroup, Merrill Lynch, Royal Bank of Scotland, and others。unfortunately for woori bank,its suits were dismissed with prejudice for failure to meet the heightened pleading requirements under§9(b) of the Federal Rules of Civil Procedure or being time barred under§766 of the Korean Civilcode。It appears that the purchase agreements under which银行purchased the CDOs all specified New York law and courts as their governing law and venue。The dismissals are in sharp contrast to several other litigations which were brought by several foreign funds against The same banks, under almost identical fact patterns, in纽约State Courtsthat have been sustained over similar motions to dismiss for failure to meet the§9(b) pleading requirements。银行was time barred under the Korean Civil Code may been incorrect。银行Bank may have been able to bring the claims In Korea under the Financial Investment Services and Capital Markets Act of Korea。This case also strongly suggests that investors in securities in private offerings abroad should no longer accept the New York law and venue as matter of course and require governing law and venue ofthe jurisdiction where the transaction takes place。
{"title":"우리은행의 미 주택융자 유동화채권(CDO) 투자 손실 건 (The Investment and Loss in Mortgage Backed CDO's by Woori Bank)","authors":"Myung Suk Yang, Eunmi Kim","doi":"10.2139/SSRN.2717925","DOIUrl":"https://doi.org/10.2139/SSRN.2717925","url":null,"abstract":"Korean Abstract: 우리은행은 2005~ 2006년에 여러 은행들(실제로는 그 은행들이 설립한 역외 SPV들)이 발행한 부채담보부 증권(“CDO”)에 약 15억 US달러를 투자하였는데, 그 CDO 는 미국에서 발행된 주택담보부 증권과 연계되어 있었다. 2007~2008년 금융위기의 여파로 우리은행은 그 투자금의 대부분을 대손처리하였고, 시티그룹, 메릴린치, 로열뱅크 오브 스코트랜드, 기타 금융기관을 상대로 미국연방법원에 소송을 제기하였다. 우리은행은 불행하게도 위 소송에서 미연방민사절차규정 §9(b) 조항의 강화된 청구내용요건을 충족시키지 못하였다거나 한국 민법 제766조의 소멸시효규정에 의하여 시효가 완성되었다는 이유로 청구기각 판결을 받았다. 우리 은행의 이러한 청구 기각 결과는, 몇몇 해외 펀드가 거의 동일한 사실관계 하에서, 같은 은행들을 상대로 뉴욕주법원에 제기한 다른 소송들과 분명한 대조를 이루는데, 다른 소송들에서는 민사절차규정 §9(b)를 근거로 한 청구기각 신청이 받아들여지지 않았다. 나아가 우리은행 법원들이 우리은행 사건에 대하여 한국민법의 소멸시효 규정을 잘못 적용하였을 수도 있다. 한편 우리은행의 CDO매입계약들은 모두 뉴욕주법을 준거법으로, 뉴욕법원을 합의관할법원으로 정한 것으로 보이나, 우리은행은 위 소송을 ‘자본시장과 금융투자업에 관한 법률’에 의하여 한국에서 제기할 수도 있었다고 보여진다. 이 사건은 또한 해외 사모증권의 투자자들은 더 이상 뉴욕주법을 준거법으로, 뉴욕법원을 합의관할로 정하는 것을 당연시 하여서는 안 되고, 거래가 일어나는 곳의 법률을 준거법으로, 그곳의 관할법원을 합의관할로 채택하여야 할 필요성을 시사한다.English Abstract: Woori Bank of Korea invested about $1.5 billion in 2005 and 2006 in collateralized debt securities (\"CDO\") issued by various banks (actually, their offshore SPVs) and linked to mortgage backed securities issued in the U.S. In the aftermath of the financial crisis in 2007-2008, Woori Bank wrote off most of the investment and brought actions in the U.S. federal court against Citigroup, Merrill Lynch, Royal Bank of Scotland, and others. Unfortunately for Woori Bank, its suits were dismissed with prejudice for failure to meet the heightened pleading requirements under §9(b) of the Federal Rules of Civil Procedure or being time barred under §766 of the Korean Civil Code. It appears that the purchase agreements under which Woori Bank purchased the CDOs all specified New York law and courts as their governing law and venue. The dismissals are in sharp contrast to several other litigations which were brought by several foreign funds against the same banks, under almost identical fact patterns, in New York State Courts, that have been sustained over similar motions to dismiss for failure to meet the §9(b) pleading requirements. And, the findings by the Woori courts that Woori Bank was time barred under the Korean Civil Code may have been incorrect. In addition, Woori Bank may have been able to bring the claims in Korea under the Financial Investment Services and Capital Markets Act of Korea. This case also strongly suggests that investors in securities in private offerings abroad should no longer accept the New York law and venue as matter of course and require governing law and venue of the jurisdiction where the transaction takes place.","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"79 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126176640","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 has enacted a number of company law statutes since the early 1990s. These demonstrate a commitment to the adoption of the corporate form as a vehicle for business activity. In the 1993 and 2005 Company Laws, and in numerous amendments to these laws, Chinese legislators have shown that they have been well attuned to modern corporate law ideas and concepts. Nevertheless, these company laws reflect some important Chinese characteristics, such as the dominant role of the Communist Party and of the impact of the state in Chinese companies. Chinese company law has clearly evolved in the shadow of a strong authoritarian state. This has influenced the ways in which these laws have been implemented. This article explores key issues regarding the implementation of company law in China since 1993 and suggests that the language of the law cannot be understood without an appreciation of various institutional constraints upon the effect of company law upon Chinese companies.
{"title":"Company Law Implementation in the PRC – The Rule of Law in the Shadow of the State","authors":"R. Tomasic","doi":"10.2139/SSRN.2647169","DOIUrl":"https://doi.org/10.2139/SSRN.2647169","url":null,"abstract":"China has enacted a number of company law statutes since the early 1990s. These demonstrate a commitment to the adoption of the corporate form as a vehicle for business activity. In the 1993 and 2005 Company Laws, and in numerous amendments to these laws, Chinese legislators have shown that they have been well attuned to modern corporate law ideas and concepts. Nevertheless, these company laws reflect some important Chinese characteristics, such as the dominant role of the Communist Party and of the impact of the state in Chinese companies. Chinese company law has clearly evolved in the shadow of a strong authoritarian state. This has influenced the ways in which these laws have been implemented. This article explores key issues regarding the implementation of company law in China since 1993 and suggests that the language of the law cannot be understood without an appreciation of various institutional constraints upon the effect of company law upon Chinese companies.","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123475017","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 purpose of the Securities Act and the Exchange Act is to supply investors with the necessary information to make informed decisions regarding an entity’s offerings. After the 2010 financial crisis, the economic crisis devastated the economy leaving many without jobs. In response to this economic recession, President Obama signed the Jumpstart Our Business Startups Act (JOBS Act) into law in 2012 as one method of stimulating the economy. This Act deregulated the securities laws for small businesses in the hopes of creating jobs and invigorating the economy. These changes allow a small business more access to capital by reducing the reporting requirements for certain entities and increasing access to shareholders. However, many think that such deregulation of the securities market could generate investor fraud by trading investor protection for capital formation and job growth. Two years after this Act was passed, the U.S. Securities and Exchange Commission (SEC) filed a small number of fraud cases that involve the JOBS Act changes, illustrating how bad actors can hide themselves from SEC view and use the JOBS Act changes to defraud investors. The problem with passing judgment based on these cases is that the SEC has not finalized the rules regarding a significant section of this Act: Title III related to the crowdfunding exemption. Because the SEC has not released those changes, investor fraud cases could increase.
{"title":"SEC Preventative Measures Against Securities Violations and Fraud Post-JOBS Act","authors":"K. Iatrou","doi":"10.2139/ssrn.2537558","DOIUrl":"https://doi.org/10.2139/ssrn.2537558","url":null,"abstract":"The purpose of the Securities Act and the Exchange Act is to supply investors with the necessary information to make informed decisions regarding an entity’s offerings. After the 2010 financial crisis, the economic crisis devastated the economy leaving many without jobs. In response to this economic recession, President Obama signed the Jumpstart Our Business Startups Act (JOBS Act) into law in 2012 as one method of stimulating the economy. This Act deregulated the securities laws for small businesses in the hopes of creating jobs and invigorating the economy. These changes allow a small business more access to capital by reducing the reporting requirements for certain entities and increasing access to shareholders. However, many think that such deregulation of the securities market could generate investor fraud by trading investor protection for capital formation and job growth. Two years after this Act was passed, the U.S. Securities and Exchange Commission (SEC) filed a small number of fraud cases that involve the JOBS Act changes, illustrating how bad actors can hide themselves from SEC view and use the JOBS Act changes to defraud investors. The problem with passing judgment based on these cases is that the SEC has not finalized the rules regarding a significant section of this Act: Title III related to the crowdfunding exemption. Because the SEC has not released those changes, investor fraud cases could increase.","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121775883","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}
Recently the South African company law landscape underwent a dramatic overhaul with the introduction of the Companies Act 71 of 2008. Central to company law is the promotion of corporate governance. It is clear that companies are no longer accountable just to their shareholders but also to society at large. Leaders should, for example, direct company strategies and operations with a view to achieving the triple bottom-line (economic, social and environmental performance) and should thus also manage the business in a sustainable manner. An important question in company law still today is in whose interest the company should be managed. Different stakeholders of importance to companies include shareholders, managers, employees, creditors etcetera. The Companies Act aims to balance the rights and obligations of shareholders and directors within companies, and it encourages the efficient and responsible management of companies. When considering the role of employees in corporations it must be noted that the Constitution grants every person a fundamental right to fair labour practices. Social as well as political changes were evident after South Africa's re-entering the world stage in the 1990s. Changes in socio-economic conditions within a developing country were also evident. These changes had a major influence on the South African labour law dispensation. Like company law, labour law is to a large extent also codified. Like company law, no precise definition of labour law exists. It is clear from the various definitions of labour law that it covers both the individual and collective labour law and that various role-players are involved. Some of these role-players include trade unions, employers/companies, employees, and the state. The various relationships between these parties are ultimately what will guide a certain outcome if there is a power play between them. In 1995 the South African labour market was transformed with the introduction of the Labour Relations Act 66 of 1995. The LRA remains the primary piece of labour legislation that governs labour law in South Africa. The notion of industrial democracy and transformation of the workplace are central issues in South African labour law. This is due to the constitutional changes that have taken place in South Africa, where the protection of human rights and the democratisation of the workplace are advanced. Before the enactment of the LRA, employee participation and voice was a much-debated topic not only locally but also internationally. It is therefore essential when considering employee participation to take due cognisance of both the labour and company law principles that may be pertinent, as well as the need for workers to have a voice in the workplace and for employers to manage their corporations. This article will attempt to indicate how the different functions, theories and models of labour and company law accommodate and promote the interests of employees in corporations and will also
{"title":"The Different Worlds of Labour and Company Law: Truth or Myth?","authors":"M. Botha","doi":"10.4314/PELJ.V17I5.06","DOIUrl":"https://doi.org/10.4314/PELJ.V17I5.06","url":null,"abstract":"Recently the South African company law landscape underwent a dramatic overhaul with the introduction of the Companies Act 71 of 2008. Central to company law is the promotion of corporate governance. It is clear that companies are no longer accountable just to their shareholders but also to society at large. Leaders should, for example, direct company strategies and operations with a view to achieving the triple bottom-line (economic, social and environmental performance) and should thus also manage the business in a sustainable manner. An important question in company law still today is in whose interest the company should be managed. Different stakeholders of importance to companies include shareholders, managers, employees, creditors etcetera. The Companies Act aims to balance the rights and obligations of shareholders and directors within companies, and it encourages the efficient and responsible management of companies. When considering the role of employees in corporations it must be noted that the Constitution grants every person a fundamental right to fair labour practices. Social as well as political changes were evident after South Africa's re-entering the world stage in the 1990s. Changes in socio-economic conditions within a developing country were also evident. These changes had a major influence on the South African labour law dispensation. Like company law, labour law is to a large extent also codified. Like company law, no precise definition of labour law exists. It is clear from the various definitions of labour law that it covers both the individual and collective labour law and that various role-players are involved. Some of these role-players include trade unions, employers/companies, employees, and the state. The various relationships between these parties are ultimately what will guide a certain outcome if there is a power play between them. In 1995 the South African labour market was transformed with the introduction of the Labour Relations Act 66 of 1995. The LRA remains the primary piece of labour legislation that governs labour law in South Africa. The notion of industrial democracy and transformation of the workplace are central issues in South African labour law. This is due to the constitutional changes that have taken place in South Africa, where the protection of human rights and the democratisation of the workplace are advanced. Before the enactment of the LRA, employee participation and voice was a much-debated topic not only locally but also internationally. It is therefore essential when considering employee participation to take due cognisance of both the labour and company law principles that may be pertinent, as well as the need for workers to have a voice in the workplace and for employers to manage their corporations. This article will attempt to indicate how the different functions, theories and models of labour and company law accommodate and promote the interests of employees in corporations and will also","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133710981","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}
Short selling reporting obligations are helpful to regulators, particularly in deterring abusive behaviour. The EU Short Selling Regulation introduces common reporting requirements. Turning to the US, it has paid far less attention to short sale reporting obligations. This article examines the approach taken to short sale reporting in the EU and US and discusses the recent reports. It suggests that changes are required in both jurisdictions to ensure reporting rules can be helpful rather than a hindrance.
{"title":"Short Selling Reporting Rules: A Greenfield Area","authors":"E. Howell","doi":"10.54648/eucl2015013","DOIUrl":"https://doi.org/10.54648/eucl2015013","url":null,"abstract":"Short selling reporting obligations are helpful to regulators, particularly in deterring abusive behaviour. The EU Short Selling Regulation introduces common reporting requirements. Turning to the US, it has paid far less attention to short sale reporting obligations. This article examines the approach taken to short sale reporting in the EU and US and discusses the recent reports. It suggests that changes are required in both jurisdictions to ensure reporting rules can be helpful rather than a hindrance.","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-11-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121991511","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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