Executive pay clawback provisions require executives to repay previously received compensation under certain circumstances, such as a downward adjustment to the financial results upon which their incentive pay was predicated. The use of these provisions is on the rise, and the SEC is expected to soon finalize rules implementing a mandatory, no-fault clawback requirement enacted as part of the Dodd-Frank legislation. The tax issue raised by clawbacks is this: should executives be allowed to recover taxes previously paid on compensation that is returned to the company as a result of a clawback provision? This Article argues that a full tax offset regime is most in keeping with the evolving rationales for clawbacks, with consistent treatment of executives subject to clawbacks, with encouraging even-handed implementation of clawbacks, and with minimizing clawback-induced distortions and other unintended consequences associated with a tax regime that would not provide full offsets. But the tax treatment of clawback payments has been uncertain, and the enactment of the Tax Cuts and Jobs Act adds to that uncertainty. Meanwhile, adoption of legislation to ensure that executives are fully compensated for taxes previously paid on recouped compensation is probably a political non-starter. Given that, this Article argues that the IRS and courts should interpret the relevant tax laws liberally to maximize recovery of taxes paid on clawed back compensation.
{"title":"Executive Pay Clawbacks and Their Taxation","authors":"David I. Walker","doi":"10.5744/FTR.2021.2003","DOIUrl":"https://doi.org/10.5744/FTR.2021.2003","url":null,"abstract":"Executive pay clawback provisions require executives to repay previously received compensation under certain circumstances, such as a downward adjustment to the financial results upon which their incentive pay was predicated. The use of these provisions is on the rise, and the SEC is expected to soon finalize rules implementing a mandatory, no-fault clawback requirement enacted as part of the Dodd-Frank legislation. The tax issue raised by clawbacks is this: should executives be allowed to recover taxes previously paid on compensation that is returned to the company as a result of a clawback provision? This Article argues that a full tax offset regime is most in keeping with the evolving rationales for clawbacks, with consistent treatment of executives subject to clawbacks, with encouraging even-handed implementation of clawbacks, and with minimizing clawback-induced distortions and other unintended consequences associated with a tax regime that would not provide full offsets. But the tax treatment of clawback payments has been uncertain, and the enactment of the Tax Cuts and Jobs Act adds to that uncertainty. Meanwhile, adoption of legislation to ensure that executives are fully compensated for taxes previously paid on recouped compensation is probably a political non-starter. Given that, this Article argues that the IRS and courts should interpret the relevant tax laws liberally to maximize recovery of taxes paid on clawed back compensation.","PeriodicalId":412394,"journal":{"name":"AARN: Economic Law (Topic)","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126390435","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 debate on human rights and investment law has markedly developed since Markus Krajewski wrote the first overview on recent trends in arbitration and treaty-making for the Yearbook of International Investment Law & Policy in 2017. In 2020, the investment and human rights nexus has not only been discussed by critical scholars, and general international law journals, but also in fora of the investment law community. Yet, the mainstreaming of human rights into investment law and arbitration has so far not led to a systematic realignment of human rights and investment law. In this chapter, I will investigate recent developments in the relationship between investment and human rights. This includes both newly registered and concluded cases in investor-state arbitration and new investment agreements, as well as broader developments and political discussions in the field of business and human rights. Ultimately, all those developments are eclipsed by the emergent conflict between investment and human rights obligations arising out of the management of the COVID-19 pandemic, which is why this chapter closes with a snapshot of the current debate.
自2017年马库斯·克拉耶夫斯基(Markus Krajewski)为《国际投资法律与政策年鉴》(Yearbook of International investment law & Policy)撰写第一篇关于仲裁和条约制定最新趋势的概述以来，关于人权和投资法的辩论得到了显著发展。在2020年，投资与人权的关系不仅被批判性的学者和一般的国际法期刊讨论，而且在投资法社区的论坛上也被讨论。然而，将人权纳入投资法和仲裁的主流迄今尚未导致人权和投资法的系统调整。在本章中，我将调查投资与人权之间关系的最新发展。这包括新登记和结案的投资者-国家仲裁案件和新的投资协定，以及在商业和人权领域更广泛的发展和政治讨论。最终，在COVID-19大流行管理中出现的投资与人权义务之间的新冲突使所有这些发展黯然失色，这就是为什么本章以当前辩论的简要介绍结束。
{"title":"Investment and Human Rights in the Shadow of the Pandemic: Recent Developments in 2020","authors":"S. Steininger","doi":"10.2139/ssrn.3789107","DOIUrl":"https://doi.org/10.2139/ssrn.3789107","url":null,"abstract":"The debate on human rights and investment law has markedly developed since Markus Krajewski wrote the first overview on recent trends in arbitration and treaty-making for the Yearbook of International Investment Law & Policy in 2017. In 2020, the investment and human rights nexus has not only been discussed by critical scholars, and general international law journals, but also in fora of the investment law community. Yet, the mainstreaming of human rights into investment law and arbitration has so far not led to a systematic realignment of human rights and investment law. In this chapter, I will investigate recent developments in the relationship between investment and human rights. This includes both newly registered and concluded cases in investor-state arbitration and new investment agreements, as well as broader developments and political discussions in the field of business and human rights. Ultimately, all those developments are eclipsed by the emergent conflict between investment and human rights obligations arising out of the management of the COVID-19 pandemic, which is why this chapter closes with a snapshot of the current debate.","PeriodicalId":412394,"journal":{"name":"AARN: Economic Law (Topic)","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130691600","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 Address, given on February 10, 2021, provides a pithy and accessible overview of retail digital currencies and their regulation. It is based on my much lengthier article, “Regulating Digital Currencies: Towards an Analytical Framework” (separately available at http://ssrn.com/abstract=3775136), which examines and critiques the evolving types of retail digital currencies that are likely to become widely used and also analyzes how those currencies should be regulated and supervised.
{"title":"University of Leeds School of Law 2021 Liberty Fellowship Address, Regulating Digital Currencies: Central Bank-Sponsored and Stablecoins","authors":"S. Schwarcz","doi":"10.2139/ssrn.3783463","DOIUrl":"https://doi.org/10.2139/ssrn.3783463","url":null,"abstract":"This Address, given on February 10, 2021, provides a pithy and accessible overview of retail digital currencies and their regulation. It is based on my much lengthier article, “Regulating Digital Currencies: Towards an Analytical Framework” (separately available at http://ssrn.com/abstract=3775136), which examines and critiques the evolving types of retail digital currencies that are likely to become widely used and also analyzes how those currencies should be regulated and supervised.","PeriodicalId":412394,"journal":{"name":"AARN: Economic Law (Topic)","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114689321","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}
You have requested my advice on (a) the possibility of lawsuits against the Peoples Republic of China (“PRC”) by holders of the pre-1950s bonds issued by the Imperial Chinese Government (“ICG”) (the “IGC Bonds”) and whether PRC need to be concerned about such suits in the United States of America (U.S.); (b) the primary barriers to such suits and possibility of surmounting them; and (c) whether there are specific bond issuances that are especially vulnerable to such suits. In my view, the PRC should be concerned, because of (i) the Trump Administration’s stance on relations with PRC and (ii) recent opinions of U.S. courts softening some of the barriers barricading the PRC and potential plaintiffs. However, despite the foregoing, I am of the opinion, that PRC can continue to assert its absolute immunity, and should it decide to defend any such suits, raise any of the defenses discussed in the succeeding paragraphs.
{"title":"The Emperors Old Bonds - Pre-1950 Debts of Imperial Chinese Government","authors":"Geoffrey Adonu","doi":"10.2139/ssrn.3554646","DOIUrl":"https://doi.org/10.2139/ssrn.3554646","url":null,"abstract":"You have requested my advice on (a) the possibility of lawsuits against the Peoples Republic of China (“PRC”) by holders of the pre-1950s bonds issued by the Imperial Chinese Government (“ICG”) (the “IGC Bonds”) and whether PRC need to be concerned about such suits in the United States of America (U.S.); (b) the primary barriers to such suits and possibility of surmounting them; and (c) whether there are specific bond issuances that are especially vulnerable to such suits. In my view, the PRC should be concerned, because of (i) the Trump Administration’s stance on relations with PRC and (ii) recent opinions of U.S. courts softening some of the barriers barricading the PRC and potential plaintiffs. However, despite the foregoing, I am of the opinion, that PRC can continue to assert its absolute immunity, and should it decide to defend any such suits, raise any of the defenses discussed in the succeeding paragraphs.","PeriodicalId":412394,"journal":{"name":"AARN: Economic Law (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-02-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133375259","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}
Irene Lynch Fannon, Jennifer L. L. Gant, Aoife M Finnerty
The JCOERE Project, funded by the European Commission’s DG Justice Programme (2014-2020), addresses two aspects of the EU’s strategy to respond to the problems of cross-border insolvency within the increasingly integrated internal market. The Commission’s strategy is described in the Recommendation setting out A New Approach to Business Failure. The first aspect concerns the implementation of co-operation obligations that have been imposed on all EU domestic courts and judiciary under the EIR Recast. The second concerns the introduction through the Preventive Restructuring Directive (PRD) of a preventive restructuring framework in the domestic insolvency laws of all Member States.
This first JCOERE Report examines these initial substantive and procedural aspects arising from the preventive restructuring frameworks. This, together with JCOERE Report 2, will contribute to answering the overall project research question, which asks:
Based on existing experience with restructuring (e.g. Ireland), if obstacles to court co-operation will arise from substantive rules, which are particular to preventive restructuring.
If some of these obstacles will be exacerbated in the preventive restructuring context, given that they pertain to existing procedural rules.
JCOERE project Report 1 (reflecting the goals of Workpackage 2 of the Project) will accordingly concentrate on the nature of substantive and procedural aspects that may arise in complex preventive restructuring or rescue regimes as envisaged by the PRD. The Report also focuses on identifying substantive doctrinal and procedural restructuring rules relevant to court-to-court, and to court-to-practitioner co-operation obligations described in the EIR Recast Regulation 2015/848. The Report includes an analysis of pre-existing systems, such as the Irish Examinership process, the French sauvegarde, and the Spanish and Austrian reorganisation and restructuring procedures. In addition, the approaches of other jurisdictions included in the Project Consortium, namely Italy and Romania, will be discussed. In view of the anecdotal evidence of its influence on the drafting of the PRD, and given its popularity of a restructuring destination, the UK is also considered as a benchmarking exercise.
The comparative analysis was extended to other jurisdictions, for example the Netherlands, because of its timely and pre-emptive response to the PRD, and Germany, Poland and Denmark.
The JCOERE Project was conducted by a team at the University College Cork in collaboration with teams at the University of Florence, Titu Maiorescu University in Romania, and INSOL Europe.
The content of this document represents the views of the author only and is his/her sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.
{"title":"JCOERE Judicial Cooperation Supporting Economic Recovery in Europe Report 1: Identifying Substantive Rules in Preventive Restructuring Frameworks Including the Preventive Restructuring Directive which May Be Incompatible with Judicial Cooperation Obligations","authors":"Irene Lynch Fannon, Jennifer L. L. Gant, Aoife M Finnerty","doi":"10.2139/ssrn.3855380","DOIUrl":"https://doi.org/10.2139/ssrn.3855380","url":null,"abstract":"The JCOERE Project, funded by the European Commission’s DG Justice Programme (2014-2020), addresses two aspects of the EU’s strategy to respond to the problems of cross-border insolvency within the increasingly integrated internal market. The Commission’s strategy is described in the Recommendation setting out A New Approach to Business Failure. The first aspect concerns the implementation of co-operation obligations that have been imposed on all EU domestic courts and judiciary under the EIR Recast. The second concerns the introduction through the Preventive Restructuring Directive (PRD) of a preventive restructuring framework in the domestic insolvency laws of all Member States. <br><br>This first JCOERE Report examines these initial substantive and procedural aspects arising from the preventive restructuring frameworks. This, together with JCOERE Report 2, will contribute to answering the overall project research question, which asks:<br><br>Based on existing experience with restructuring (e.g. Ireland), if obstacles to court co-operation will arise from substantive rules, which are particular to preventive restructuring.<br><br>If some of these obstacles will be exacerbated in the preventive restructuring context, given that they pertain to existing procedural rules.<br><br>JCOERE project Report 1 (reflecting the goals of Workpackage 2 of the Project) will accordingly concentrate on the nature of substantive and procedural aspects that may arise in complex preventive restructuring or rescue regimes as envisaged by the PRD. The Report also focuses on identifying substantive doctrinal and procedural restructuring rules relevant to court-to-court, and to court-to-practitioner co-operation obligations described in the EIR Recast Regulation 2015/848. The Report includes an analysis of pre-existing systems, such as the Irish Examinership process, the French sauvegarde, and the Spanish and Austrian reorganisation and restructuring procedures. In addition, the approaches of other jurisdictions included in the Project Consortium, namely Italy and Romania, will be discussed. In view of the anecdotal evidence of its influence on the drafting of the PRD, and given its popularity of a restructuring destination, the UK is also considered as a benchmarking exercise.<br><br>The comparative analysis was extended to other jurisdictions, for example the Netherlands, because of its timely and pre-emptive response to the PRD, and Germany, Poland and Denmark.<br><br>The JCOERE Project was conducted by a team at the University College Cork in collaboration with teams at the University of Florence, Titu Maiorescu University in Romania, and INSOL Europe. <br><br>The content of this document represents the views of the author only and is his/her sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.<br>","PeriodicalId":412394,"journal":{"name":"AARN: Economic Law (Topic)","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124037227","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 proposed that robo advisers should gather more investor data to act in the best interest of investors by implementing enhanced, digital communications systems in their platforms that will better enable robo advisers to solicit/disclose information from/to an investor while also providing investors the ability to input and request information from robo advisers. The purpose of embedding digital communications systems will not only increase interactions between robo advisers and investors, it will allow for robo advisers to take advantage of their algorithm and platform technology to gather sufficient, current data from investors that is necessary to offer investment advice in investors’ best interests. First, this Paper will introduce robo advisers and industry information. Second, the relevant legal oversight of the robo adviser industry related to legislation, fiduciary duties, and regulatory guidance will be discussed. Finally, the argument that robo advisers’ best interest fiduciary duties should focus on increasing information gathering through communications between robo advisers and investors will be put forth and explained.
{"title":"Robo Advisers: An Argument for More Information Solicitation and Disclosure to Satisfy Fiduciary Duties","authors":"Greg Callaghan","doi":"10.2139/ssrn.3506507","DOIUrl":"https://doi.org/10.2139/ssrn.3506507","url":null,"abstract":"It is proposed that robo advisers should gather more investor data to act in the best interest of investors by implementing enhanced, digital communications systems in their platforms that will better enable robo advisers to solicit/disclose information from/to an investor while also providing investors the ability to input and request information from robo advisers. The purpose of embedding digital communications systems will not only increase interactions between robo advisers and investors, it will allow for robo advisers to take advantage of their algorithm and platform technology to gather sufficient, current data from investors that is necessary to offer investment advice in investors’ best interests. \u0000 \u0000First, this Paper will introduce robo advisers and industry information. Second, the relevant legal oversight of the robo adviser industry related to legislation, fiduciary duties, and regulatory guidance will be discussed. Finally, the argument that robo advisers’ best interest fiduciary duties should focus on increasing information gathering through communications between robo advisers and investors will be put forth and explained.","PeriodicalId":412394,"journal":{"name":"AARN: Economic Law (Topic)","volume":"228 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124188165","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}
There are elaborate regulatory regimes across different jurisdictions to ensure critical regulatory oversight over the private funds industry to which private equity (PE) funds belong. Such regulation typically focuses on either the adviser/manager of a fund, the fund itself, or both (as will be shown to be the case in Nigeria). The aim of this paper is to examine the regulation of PE funds in Nigeria vis-a-vis advanced jurisdictions like United States (U.S.) and United Kingdom (U.K.). Analyses in this paper aim to reveal that whilst it is important for every jurisdiction (including Nigeria) to regulate the private funds industry, the extant disclosure requirement that PE funds and advisers are subject to under the current Nigerian regulatory framework may discourage the domiciliation of PE funds in Nigeria. The author therefore canvasses for a possible change to the current regulatory framework for PE funds in Nigeria.
{"title":"Regulation of Private Equity Funds in Nigeria: The Preference for Offshore Domiciled Private Equity Fund","authors":"M. Abada","doi":"10.2139/ssrn.3491265","DOIUrl":"https://doi.org/10.2139/ssrn.3491265","url":null,"abstract":"There are elaborate regulatory regimes across different jurisdictions to ensure critical regulatory oversight over the private funds industry to which private equity (PE) funds belong. Such regulation typically focuses on either the adviser/manager of a fund, the fund itself, or both (as will be shown to be the case in Nigeria). The aim of this paper is to examine the regulation of PE funds in Nigeria vis-a-vis advanced jurisdictions like United States (U.S.) and United Kingdom (U.K.). Analyses in this paper aim to reveal that whilst it is important for every jurisdiction (including Nigeria) to regulate the private funds industry, the extant disclosure requirement that PE funds and advisers are subject to under the current Nigerian regulatory framework may discourage the domiciliation of PE funds in Nigeria. The author therefore canvasses for a possible change to the current regulatory framework for PE funds in Nigeria.","PeriodicalId":412394,"journal":{"name":"AARN: Economic Law (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-11-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115694106","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}
In recent years, Vietnamese courts have faced a caseload that is increasing at a rate of ten to twelve percent annually. The Economic Courts, which handle business related cases, have been most affected by this trend, seeing the growth in their caseload outpace that in the regular civil court system. This paper examines the explanatory power of three factors – cultural, institutional and economic – in determining this explosion in the number of business disputes litigated in the Economic Courts.
Using data from 2003 to 2012, the paper finds that institutional and economic factors rather than cultural ones offer the best explanations for this upward trend in the number of business cases in Vietnam. The findings enrich the literature on institutions in transition economies, by identifying them as determinants of choice of enforcement devices. This contributes to the debate on choice of enforcement device by providing evidence from both an Asian country and a transition economy. The research findings may also inform current legal reform in countries which have been allured by the model of strong private enforcement in the United States.
{"title":"Explaining Vietnam’s Boom in Business Litigation","authors":"Q. Quach, S. McGinty","doi":"10.2139/ssrn.3418759","DOIUrl":"https://doi.org/10.2139/ssrn.3418759","url":null,"abstract":"In recent years, Vietnamese courts have faced a caseload that is increasing at a rate of ten to twelve percent annually. The Economic Courts, which handle business related cases, have been most affected by this trend, seeing the growth in their caseload outpace that in the regular civil court system. This paper examines the explanatory power of three factors – cultural, institutional and economic – in determining this explosion in the number of business disputes litigated in the Economic Courts. <br><br>Using data from 2003 to 2012, the paper finds that institutional and economic factors rather than cultural ones offer the best explanations for this upward trend in the number of business cases in Vietnam. The findings enrich the literature on institutions in transition economies, by identifying them as determinants of choice of enforcement devices. This contributes to the debate on choice of enforcement device by providing evidence from both an Asian country and a transition economy. The research findings may also inform current legal reform in countries which have been allured by the model of strong private enforcement in the United States.","PeriodicalId":412394,"journal":{"name":"AARN: Economic Law (Topic)","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126511205","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}
In spite of Australia’s enviable record in controlling immigration in all of its incidents, the number of migrants working in contravention of their visa conditions or otherwise in contravention of the law has continued to rise in recent years. This article explores the extent to which migrants working ‘outside’ the law enjoy legal protections when they are injured in the course of their employment or where they suffer injustice at the hands of employers or task masters. The authors begin by outlining the ways in which immigration laws can operate to create ‘precarious’ spaces for migrants at work. Research suggests that non-citizens working without authorisation (in any country) are more likely to be exploited, abused and injured. This article ultimately seeks to demonstrate that a person’s status as an undocumented or ‘irregular’ migrant should not make exploitation, abuse and injury inevitable. Such outcomes flow from the failure of other cognate areas of law to protect the worker. These are: labour law, occupational health and safety law, workers’ compensation law, contract and tort law. It is here that lawyers, jurists and policy makers can help to shape the law so as to afford migrant workers the respect and protection demanded by fundamental human rights norms.
{"title":"Labouring Outside the Law: Migrant Workers and the Protective Reach of Australian Law","authors":"M. Crock, J. Dale","doi":"10.2139/SSRN.3391605","DOIUrl":"https://doi.org/10.2139/SSRN.3391605","url":null,"abstract":"In spite of Australia’s enviable record in controlling immigration in all of its incidents, the number of migrants working in contravention of their visa conditions or otherwise in contravention of the law has continued to rise in recent years. This article explores the extent to which migrants working ‘outside’ the law enjoy legal protections when they are injured in the course of their employment or where they suffer injustice at the hands of employers or task masters. The authors begin by outlining the ways in which immigration laws can operate to create ‘precarious’ spaces for migrants at work. Research suggests that non-citizens working without authorisation (in any country) are more likely to be exploited, abused and injured. This article ultimately seeks to demonstrate that a person’s status as an undocumented or ‘irregular’ migrant should not make exploitation, abuse and injury inevitable. Such outcomes flow from the failure of other cognate areas of law to protect the worker. These are: labour law, occupational health and safety law, workers’ compensation law, contract and tort law. It is here that lawyers, jurists and policy makers can help to shape the law so as to afford migrant workers the respect and protection demanded by fundamental human rights norms.","PeriodicalId":412394,"journal":{"name":"AARN: Economic Law (Topic)","volume":"102 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131042027","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}
Has corporate law and its bundles of fiduciary obligations become irrelevant? Over the last thirty years, the American public corporation has undergone a profound metamorphosis, transforming itself from a business with dispersed ownership to one whose ownership is highly concentrated in the hands of sophisticated financial institutions. Corporate law has not been immutable to these changes so that current doctrine now accords to a shareholder vote two effects: first, the vote satisfies a statutory mandate that shareholders approve a deal, and second and significantly, the vote insulates the transaction and its actors from any claim of misconduct incident the approved transaction. This article takes issue with the courts and commentators who have so elevated the impact of shareholder approval to insulate misconduct. We develop why it is not reasonable to believe that the shareholders’ competencies extend to adjudging managerial misconduct, why that conclusion is inconsistent with other modern corporate law developments, and why such shareholder ratification is likely both coerced and poorly considered. We also point out that the position of courts and commentators who pronounce the death of corporate fiduciary law is deeply qualified by the deep conflicts of interest institutional investors face when voting as well as the very real threat that today’s ecology that supports shareholder activism is likely to change so that the voice of the discontented shareholder will be at least more muted in the future. Finally, we provide strong empirical support based on a sample of 852 merger deals from 2000 to 2015 that there is a very large thumb on the scale that pushes all deals toward approval, regardless of any allegations of wrongdoing. We observe substantial ownership changes at target corporations, sometimes as high as 40 to 50% of their stock, from long-term investors to hedge funds upon the announcement of a deal and before the consummation of the transaction with a shareholder vote. This change reflects the merger arbitrageurs’ actions. We further show that this change in ownership has a positive and statistically significant impact on the likelihood of merger deals garnering the required shareholder approval. We conclude that the Delaware courts need to rethink their obsession with the shareholder vote, renounce the current doctrinal trends that are taking them in the wrong direction, and return to their historic role of evaluating whether directors have satisfied their fiduciary duties in M&A transactions.
{"title":"Understanding the (Ir)Relevance of Shareholder Votes on M&A Deals","authors":"James D. Cox, Tomas Mondino, Randall S. Thomas","doi":"10.2139/SSRN.3333241","DOIUrl":"https://doi.org/10.2139/SSRN.3333241","url":null,"abstract":"Has corporate law and its bundles of fiduciary obligations become irrelevant? Over the last thirty years, the American public corporation has undergone a profound metamorphosis, transforming itself from a business with dispersed ownership to one whose ownership is highly concentrated in the hands of sophisticated financial institutions. Corporate law has not been immutable to these changes so that current doctrine now accords to a shareholder vote two effects: first, the vote satisfies a statutory mandate that shareholders approve a deal, and second and significantly, the vote insulates the transaction and its actors from any claim of misconduct incident the approved transaction. \u0000 \u0000This article takes issue with the courts and commentators who have so elevated the impact of shareholder approval to insulate misconduct. We develop why it is not reasonable to believe that the shareholders’ competencies extend to adjudging managerial misconduct, why that conclusion is inconsistent with other modern corporate law developments, and why such shareholder ratification is likely both coerced and poorly considered. We also point out that the position of courts and commentators who pronounce the death of corporate fiduciary law is deeply qualified by the deep conflicts of interest institutional investors face when voting as well as the very real threat that today’s ecology that supports shareholder activism is likely to change so that the voice of the discontented shareholder will be at least more muted in the future. \u0000 \u0000Finally, we provide strong empirical support based on a sample of 852 merger deals from 2000 to 2015 that there is a very large thumb on the scale that pushes all deals toward approval, regardless of any allegations of wrongdoing. We observe substantial ownership changes at target corporations, sometimes as high as 40 to 50% of their stock, from long-term investors to hedge funds upon the announcement of a deal and before the consummation of the transaction with a shareholder vote. This change reflects the merger arbitrageurs’ actions. We further show that this change in ownership has a positive and statistically significant impact on the likelihood of merger deals garnering the required shareholder approval. \u0000 \u0000We conclude that the Delaware courts need to rethink their obsession with the shareholder vote, renounce the current doctrinal trends that are taking them in the wrong direction, and return to their historic role of evaluating whether directors have satisfied their fiduciary duties in M&A transactions.","PeriodicalId":412394,"journal":{"name":"AARN: Economic Law (Topic)","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124143954","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}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：