This essay is an exercise that fitted into a broader research work the author conducted for her own PhD dissertation. At that time, doctoral researchers at the European University Institute were challenged to think thoroughly about methodology in law. I accepted that challenge. As a consequence, this essay was first and foremost an attempt to conciliate law and economics from the spectrum of game theory. In this essay, I argue that existing default rules often fail to either protect shareholders from collective action problems inside private limited liability companies, or that they prevent shareholders from being able to unload their shares when desired. In other words, the weakness of particular corporate default rules is two-sided. Here, I focus mainly on the first side, that is to say, I address the collective action problem. This is demonstrated with the model of shareholders’ coordination I present herein. With this model, I illustrate how a collective action problem can force shareholders to sell lower than their total valuation of the company because they believe others will sell and, thus, they will lose power over the company’s future policies. At the end, I propose solutions that are meant to stimulate discussion about which design of default rules is more likely to overcome ownership problems deriving from the inefficiency of transfer of shares in private limited liability companies (PLLCs) – the most commonly used private units of economic development.
这篇文章是一个练习，适合更广泛的研究工作，作者进行了她自己的博士论文。当时，欧洲大学研究所(European University Institute)的博士研究人员面临着彻底思考法学方法论的挑战。我接受了这个挑战。因此，这篇文章首先是试图从博弈论的角度调和法律和经济学。在这篇文章中，我认为，现有的违约规则往往既不能保护股东免受私人有限责任公司内部集体行动问题的影响，也不能阻止股东在需要时抛售自己的股票。换句话说，特定公司违约规则的弱点是双面的。在这里，我主要关注第一个方面，也就是说，我要解决集体行动的问题。本文提出的股东协调模型证明了这一点。通过这个模型，我说明了集体行动问题如何迫使股东以低于他们对公司的总估值的价格出售，因为他们相信其他人会出售，因此，他们将失去对公司未来政策的权力。最后，我提出了一些解决方案，旨在激发人们的讨论，即哪种默认规则设计更有可能克服私人有限责任公司(pllc)(经济发展中最常用的私人单位)股份转让效率低下所带来的所有权问题。
{"title":"Why Efficiency: A Research Agenda for an Explanatory Account of Default Rules as Choreographers and a Tentative Concept of Regulatory Contractualization","authors":"Lécia Vicente","doi":"10.2139/ssrn.2575458","DOIUrl":"https://doi.org/10.2139/ssrn.2575458","url":null,"abstract":"This essay is an exercise that fitted into a broader research work the author conducted for her own PhD dissertation. At that time, doctoral researchers at the European University Institute were challenged to think thoroughly about methodology in law. I accepted that challenge. As a consequence, this essay was first and foremost an attempt to conciliate law and economics from the spectrum of game theory. In this essay, I argue that existing default rules often fail to either protect shareholders from collective action problems inside private limited liability companies, or that they prevent shareholders from being able to unload their shares when desired. In other words, the weakness of particular corporate default rules is two-sided. Here, I focus mainly on the first side, that is to say, I address the collective action problem. This is demonstrated with the model of shareholders’ coordination I present herein. With this model, I illustrate how a collective action problem can force shareholders to sell lower than their total valuation of the company because they believe others will sell and, thus, they will lose power over the company’s future policies. At the end, I propose solutions that are meant to stimulate discussion about which design of default rules is more likely to overcome ownership problems deriving from the inefficiency of transfer of shares in private limited liability companies (PLLCs) – the most commonly used private units of economic development.","PeriodicalId":431428,"journal":{"name":"Corporate Law: LLCs","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114074514","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 : 2014-11-29DOI: 10.21684/2412-2343-2014-1-1-25-43
C. Pereira
This paper examines the current regulation of public-private partnerships (PPP) and concessions of public services in Brazil. Under the Brazilian Constitution, the government must provide or build certain public utility services or infrastructure works directly, by using its own departments and personnel, or indirectly through a government franchise. Such franchise may take the form of concessions or PPPs (public-private partnerships). Both of these contractual arrangements involve initial commitments by the private party (concessionaire) to invest and expect repayment from the revenues of the concession. The difference between the two categories of franchises under Brazilian law is based on the form of government contribution. Brazilian PPPs are special types of concessions in which part or all of the concessionaire’s compensation is paid by the government and does not come directly from the revenue gained through the service or work at issue. They also provide that the government may undertake to fund directly the initial works to reduce the risk assumed by the private party. Both PPPs and the so-called common concessions are available and actually employed throughout all government levels in Brazil. Most of the Brazilian government activity in infrastructure areas in the past 20 years has adopted a concession or PPP format. By analyzing the main features of the Brazilian concession and PPP system against the backdrop of international systems, this paper aims to offer the international reader a comprehensive and comparative view of the legal framework behind most large-scale investments in Brazilian infrastructure.
{"title":"Public-Private Partnerships (PPP) and Concessions of Public Services in Brazil","authors":"C. Pereira","doi":"10.21684/2412-2343-2014-1-1-25-43","DOIUrl":"https://doi.org/10.21684/2412-2343-2014-1-1-25-43","url":null,"abstract":"This paper examines the current regulation of public-private partnerships (PPP) and concessions of public services in Brazil. Under the Brazilian Constitution, the government must provide or build certain public utility services or infrastructure works directly, by using its own departments and personnel, or indirectly through a government franchise. Such franchise may take the form of concessions or PPPs (public-private partnerships). Both of these contractual arrangements involve initial commitments by the private party (concessionaire) to invest and expect repayment from the revenues of the concession. The difference between the two categories of franchises under Brazilian law is based on the form of government contribution. Brazilian PPPs are special types of concessions in which part or all of the concessionaire’s compensation is paid by the government and does not come directly from the revenue gained through the service or work at issue. They also provide that the government may undertake to fund directly the initial works to reduce the risk assumed by the private party. Both PPPs and the so-called common concessions are available and actually employed throughout all government levels in Brazil. Most of the Brazilian government activity in infrastructure areas in the past 20 years has adopted a concession or PPP format. By analyzing the main features of the Brazilian concession and PPP system against the backdrop of international systems, this paper aims to offer the international reader a comprehensive and comparative view of the legal framework behind most large-scale investments in Brazilian infrastructure.","PeriodicalId":431428,"journal":{"name":"Corporate Law: LLCs","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134378021","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}
Robert P. Bartlett, R. Buxbaum, Stavros Gadinis, J. Mccrary, E. Talley, Steven Davidoff Solomon
This comment letter was submitted by U.C. Berkeley corporate law professors in response to a request for comment by the Health and Human Services Department on the definition of "eligible organization" under the Affordable Care Act in light of the Supreme Court's decision in Burwell v. Hobby Lobby. "Eligible organizations" will be permitted under the Hobby Lobby decision to assert the religious principles of their shareholders to exempt themselves from the Affordable Care Act's contraceptive mandate for employees. In Hobby Lobby, the Supreme Court held that the nexus of identity between several closely-held, for-profit corporations and their shareholders holding “a sincere religious belief that life begins at conception” was sufficiently close to justify granting such corporations an exemption from the Affordable Care Act's contraceptive mandate pursuant to the Religious Freedom Restoration Act of 1993. More specifically, the Court ascertained that the overall interests of the corporations and their natural-person shareholders were sufficiently identical to warrant ascribing the religious commitments of the shareholders to their corporations. Notably, the Court stopped short of articulating a diagnostic test for determining when a sufficient overlap of interests exists; instead, it concluded that well-established principles in state corporate law should provide such guidance. We believe that state corporate law does in fact provide the diagnostic test the Court desires for determining when it is appropriate to disregard the distinct identity of a corporation for the identity of its shareholders. This test is rooted in the long-standing case law that constitutes the alter ego doctrine (commonly referred to as “veil piercing”). To sustain a claim of veil piercing, state corporate law uniformly requires there to be “unity of ownership and interest” between the corporation and its shareholders. If a corporation is operated as the effective alter ego of its shareholders to such an extent that its separate corporate existence ceases to exist as a practical matter, then a veil piercing claim can be established that effectively attributes the corporation’s legal rights and obligations to its shareholders, and vice versa. A veil piercing conclusion effectively holds that there is no practical difference between the corporation and the shareholders themselves.We therefore propose that for purposes of defining an “eligible organization” under Hobby Lobby, the HHS and other federal organizations should follow the corporate law doctrine of veil piercing. Indeed, to make this doctrine administratively feasible, we further suggest that shareholders of a corporation should have to certify that they and the corporation have a unity in identity and interests, and therefore the corporation should be viewed as the shareholders’ alter ego.
这封信是由加州大学伯克利分校的公司法教授提交的，以回应卫生和人类服务部就《合理医疗费用法案》下“合格组织”的定义提出的评论请求，该定义是根据最高法院在Burwell诉Hobby Lobby案中的裁决。根据爱好游说团的决定，“符合条件的组织”将被允许维护其股东的宗教原则，以使自己免受《平价医疗法案》对员工的避孕规定的约束。在“爱好游说团”一案中，最高法院认为，几家少数人持股的营利性公司及其股东之间的身份联系，与其持有“生命始于受孕的真诚宗教信仰”的股东之间的身份联系，足以证明，根据1993年的《宗教自由恢复法案》，这些公司有权豁免《平价医疗法案》(Affordable Care Act)的避孕规定。更具体地说，法院确定公司及其自然人股东的整体利益充分相同，有理由将股东的宗教承诺归因于其公司。值得注意的是，最高法院没有明确提出一种诊断标准，以确定何时存在足够的利益重叠;相反，它的结论是，各州公司法中公认的原则应该提供这样的指导。我们认为，州公司法实际上确实提供了本院所希望的诊断性测试，以确定在何种情况下为了股东的身份而忽视公司的独特身份是适当的。这种检验根植于长期存在的判例法，构成了另一个自我原则(通常被称为“穿面纱”)。为了支持穿透面纱的主张，州公司法统一要求公司及其股东之间存在“所有权和利益的统一”。如果一个公司作为其股东的有效的另一个自我而运作，以至于其独立的公司存在作为一个实际问题不再存在，那么可以建立一个穿透面纱的主张，有效地将公司的法定权利和义务归于其股东，反之亦然。一个穿面纱的结论有效地认为，公司和股东本身之间没有实际的区别。因此，我们建议，为了在Hobby Lobby下定义一个“合格组织”，HHS和其他联邦组织应该遵循公司法中穿面纱的原则。事实上，为了使这一原则在行政上可行，我们进一步建议，公司的股东应该证明他们和公司在身份和利益上是统一的，因此公司应该被视为股东的另一个自我。
{"title":"Comment on the Definition of ‘Eligible Organization’ for Purposes of Coverage of Certain Preventive Services under the Affordable Care Act","authors":"Robert P. Bartlett, R. Buxbaum, Stavros Gadinis, J. Mccrary, E. Talley, Steven Davidoff Solomon","doi":"10.2139/SSRN.2507305","DOIUrl":"https://doi.org/10.2139/SSRN.2507305","url":null,"abstract":"This comment letter was submitted by U.C. Berkeley corporate law professors in response to a request for comment by the Health and Human Services Department on the definition of \"eligible organization\" under the Affordable Care Act in light of the Supreme Court's decision in Burwell v. Hobby Lobby. \"Eligible organizations\" will be permitted under the Hobby Lobby decision to assert the religious principles of their shareholders to exempt themselves from the Affordable Care Act's contraceptive mandate for employees. In Hobby Lobby, the Supreme Court held that the nexus of identity between several closely-held, for-profit corporations and their shareholders holding “a sincere religious belief that life begins at conception” was sufficiently close to justify granting such corporations an exemption from the Affordable Care Act's contraceptive mandate pursuant to the Religious Freedom Restoration Act of 1993. More specifically, the Court ascertained that the overall interests of the corporations and their natural-person shareholders were sufficiently identical to warrant ascribing the religious commitments of the shareholders to their corporations. Notably, the Court stopped short of articulating a diagnostic test for determining when a sufficient overlap of interests exists; instead, it concluded that well-established principles in state corporate law should provide such guidance. We believe that state corporate law does in fact provide the diagnostic test the Court desires for determining when it is appropriate to disregard the distinct identity of a corporation for the identity of its shareholders. This test is rooted in the long-standing case law that constitutes the alter ego doctrine (commonly referred to as “veil piercing”). To sustain a claim of veil piercing, state corporate law uniformly requires there to be “unity of ownership and interest” between the corporation and its shareholders. If a corporation is operated as the effective alter ego of its shareholders to such an extent that its separate corporate existence ceases to exist as a practical matter, then a veil piercing claim can be established that effectively attributes the corporation’s legal rights and obligations to its shareholders, and vice versa. A veil piercing conclusion effectively holds that there is no practical difference between the corporation and the shareholders themselves.We therefore propose that for purposes of defining an “eligible organization” under Hobby Lobby, the HHS and other federal organizations should follow the corporate law doctrine of veil piercing. Indeed, to make this doctrine administratively feasible, we further suggest that shareholders of a corporation should have to certify that they and the corporation have a unity in identity and interests, and therefore the corporation should be viewed as the shareholders’ alter ego.","PeriodicalId":431428,"journal":{"name":"Corporate Law: LLCs","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-10-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124925867","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 : 2014-09-01DOI: 10.4337/9781783474400.00027
Peter B. Oh
The business trust arguably is the most prominent and yet enigmatic organizational form used today. The problem is that no one knows exactly how prevalent business trusts are, much less why they are the preferred vehicle for a broad and diverse range of transactions. This chapter sheds some light on the business trust by examining its early history at common law, its subsequent mutation into modern statutory and contractarian forms, as well as some of its most common functions. The more closely we scrutinize the business trust, the more apparent it becomes that the pertinent question about business trusts is not why they exist, but rather why they are not used to an even greater extent than what we suspect.
{"title":"Business Trusts","authors":"Peter B. Oh","doi":"10.4337/9781783474400.00027","DOIUrl":"https://doi.org/10.4337/9781783474400.00027","url":null,"abstract":"The business trust arguably is the most prominent and yet enigmatic organizational form used today. The problem is that no one knows exactly how prevalent business trusts are, much less why they are the preferred vehicle for a broad and diverse range of transactions. This chapter sheds some light on the business trust by examining its early history at common law, its subsequent mutation into modern statutory and contractarian forms, as well as some of its most common functions. The more closely we scrutinize the business trust, the more apparent it becomes that the pertinent question about business trusts is not why they exist, but rather why they are not used to an even greater extent than what we suspect.","PeriodicalId":431428,"journal":{"name":"Corporate Law: LLCs","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123347016","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}
Bradley T. Borden, B. O'Connor, Steven R. Schneider
This article examines the alternative forms available to merging tax partnerships and reveals how the different forms can affect the tax consequences of the parties to such a transaction. In particular, the article illustrates how parties should choose the proper form as needed to avoid adverse tax consequences and manage the bases of property and interests that they transfer or receive as part of a reorganization.
{"title":"Avoiding Adverse Tax Consequences in Partnership and LLC Reorganizations","authors":"Bradley T. Borden, B. O'Connor, Steven R. Schneider","doi":"10.2139/SSRN.2374026","DOIUrl":"https://doi.org/10.2139/SSRN.2374026","url":null,"abstract":"This article examines the alternative forms available to merging tax partnerships and reveals how the different forms can affect the tax consequences of the parties to such a transaction. In particular, the article illustrates how parties should choose the proper form as needed to avoid adverse tax consequences and manage the bases of property and interests that they transfer or receive as part of a reorganization.","PeriodicalId":431428,"journal":{"name":"Corporate Law: LLCs","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114062921","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 essay introduces to the legal community a fascinating, decreasingly farfetched technological possibility that the Bitcoin software promotes, and it offers suggestions for the how the law might interact with that possibility. In short, the Bitcoin technology allows autonomously operating software — such as a computer virus or the software that manages a network of vending machines — to exercise control over significant wealth, not as an intermediary for individuals or companies but rather, in a functionally meaningful sense, in its own right.The first part of this essay briefly describes the Bitcoin software technology for a legal audience. Part II explains how Bitcoin promotes the possibility of independently wealthy software. Part III considers several legal approaches to that possibility. The legal analysis is exploratory, and it is just a first step; it is too early to offer definite normative opinions. But it will likely be important for legal "technologies," such as organizational forms, concepts of legal entities and legal personality, and institutional systems of contract and tort law to keep pace with technological innovation.
{"title":"Of Bitcoins, Independently Wealthy Software, and the Zero-Member LLC","authors":"Shawn J. Bayern","doi":"10.2139/ssrn.2366197","DOIUrl":"https://doi.org/10.2139/ssrn.2366197","url":null,"abstract":"This essay introduces to the legal community a fascinating, decreasingly farfetched technological possibility that the Bitcoin software promotes, and it offers suggestions for the how the law might interact with that possibility. In short, the Bitcoin technology allows autonomously operating software — such as a computer virus or the software that manages a network of vending machines — to exercise control over significant wealth, not as an intermediary for individuals or companies but rather, in a functionally meaningful sense, in its own right.The first part of this essay briefly describes the Bitcoin software technology for a legal audience. Part II explains how Bitcoin promotes the possibility of independently wealthy software. Part III considers several legal approaches to that possibility. The legal analysis is exploratory, and it is just a first step; it is too early to offer definite normative opinions. But it will likely be important for legal \"technologies,\" such as organizational forms, concepts of legal entities and legal personality, and institutional systems of contract and tort law to keep pace with technological innovation.","PeriodicalId":431428,"journal":{"name":"Corporate Law: LLCs","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-12-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124911151","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 2012 presidential election cycle brought national attention to a strategy used by private equity firms, like the one founded by Mitt Romney, to convert ordinary income into long-term capital gains. Under the strategy, a private equity firm waives its right to a fixed fee from a managed fund. Instead of the fixed fee, which would be taxed at high rates, the firm receives an additional profits interest (or “waiver interest”) in the fund. If this strategy has its intended effect, income allocated to the waiver interest qualifies as low-taxed long-term capital gain.This apparent conversion of ordinary income to long-term capital gain has drawn withering criticism from several respected commentators. Private equity firms, many of which already enjoy spectacular income, have allegedly engaged in aggressive or illegal behavior by taking a waiver interest rather than a fixed fee payment. According to the commentators, the Internal Revenue Service (IRS) could successfully challenge the fee waiver strategy because (1) section 707(a)(2)(A) allows the IRS to recharacterize the transaction as one between strangers (and thus generating ordinary income), (2) a distribution regarding income allocated to the waiver interest may qualify as a “guaranteed payment” under section 707(c) and would again give rise to ordinary income, and (3) the receipt of the waiver interest qualifies as a recognition event under the common law authorities related to profits interests.
{"title":"Mixing Management Fee Waivers with Mayo","authors":"Andy Grewal","doi":"10.5744/ftr.2014.1601","DOIUrl":"https://doi.org/10.5744/ftr.2014.1601","url":null,"abstract":"The 2012 presidential election cycle brought national attention to a strategy used by private equity firms, like the one founded by Mitt Romney, to convert ordinary income into long-term capital gains. Under the strategy, a private equity firm waives its right to a fixed fee from a managed fund. Instead of the fixed fee, which would be taxed at high rates, the firm receives an additional profits interest (or “waiver interest”) in the fund. If this strategy has its intended effect, income allocated to the waiver interest qualifies as low-taxed long-term capital gain.This apparent conversion of ordinary income to long-term capital gain has drawn withering criticism from several respected commentators. Private equity firms, many of which already enjoy spectacular income, have allegedly engaged in aggressive or illegal behavior by taking a waiver interest rather than a fixed fee payment. According to the commentators, the Internal Revenue Service (IRS) could successfully challenge the fee waiver strategy because (1) section 707(a)(2)(A) allows the IRS to recharacterize the transaction as one between strangers (and thus generating ordinary income), (2) a distribution regarding income allocated to the waiver interest may qualify as a “guaranteed payment” under section 707(c) and would again give rise to ordinary income, and (3) the receipt of the waiver interest qualifies as a recognition event under the common law authorities related to profits interests.","PeriodicalId":431428,"journal":{"name":"Corporate Law: LLCs","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121385055","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 origin of the "company limited by guarantee" is nearly impossible to pinpoint. While some experts believe that this type of business form sprang into being overnight, it is more likely that the company limited by guarantee slowly developed over centuries of time. The origins of the company limited by guarantee have a shadowy existence, which is likely attributable to the notion that this business form is comprised of bits and pieces of other business forms that existed in early English history.
{"title":"Pinpointing the Emergence of the Company Limited by Guarantee in Company Law: Historical Origins and Modern Day Review","authors":"William Byrnes","doi":"10.2139/SSRN.2304574","DOIUrl":"https://doi.org/10.2139/SSRN.2304574","url":null,"abstract":"The origin of the \"company limited by guarantee\" is nearly impossible to pinpoint. While some experts believe that this type of business form sprang into being overnight, it is more likely that the company limited by guarantee slowly developed over centuries of time. The origins of the company limited by guarantee have a shadowy existence, which is likely attributable to the notion that this business form is comprised of bits and pieces of other business forms that existed in early English history.","PeriodicalId":431428,"journal":{"name":"Corporate Law: LLCs","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-08-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132157092","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 Chapter in a comparative book on private limited liability companies starts with an illustration of the former success of the Dutch limited liability company (BV). Next it addresses the competitive European legal environment within which the Dutch BV has to operate. The study shows how the Dutch legal environment lost a large part of its competitiveness. Third, we sketch the flexibility of the new Dutch system and investigate whether the legal reform can meet the needs and requirements of modern business in the 21st century. We do not identify a successful restart and provide a number of suggestions to turn the tide.
{"title":"The Dutch Private Company: Successfully Relaunched?","authors":"Christoph van der Elst, E. Vermeulen","doi":"10.2139/ssrn.2267522","DOIUrl":"https://doi.org/10.2139/ssrn.2267522","url":null,"abstract":"This Chapter in a comparative book on private limited liability companies starts with an illustration of the former success of the Dutch limited liability company (BV). Next it addresses the competitive European legal environment within which the Dutch BV has to operate. The study shows how the Dutch legal environment lost a large part of its competitiveness. Third, we sketch the flexibility of the new Dutch system and investigate whether the legal reform can meet the needs and requirements of modern business in the 21st century. We do not identify a successful restart and provide a number of suggestions to turn the tide.","PeriodicalId":431428,"journal":{"name":"Corporate Law: LLCs","volume":"148 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116636561","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}
Directive 2006/68/EC eliminated the ban on financial assistance imposed by article 23 of Directive 77/91/EEC. The new formulation of article 23 allows Member States to authorize public limited liability companies to undertake financial assistance transactions, provided that they provide adequate safeguards to the (minority) shareholders and to third parties. Various Member States have not exercised this option and many authors have criticised the text of article 23 of the second Directive. The conditions set forth in article 23 aim to protect minority rights and creditor rights are considered excessively rigid and create an obstacle to the effective simplification of the regulations governing financial assistance. This article suggests possible modifications to article 23 of the second directive which could render the financial assistance regime more flexible without prejudicing the interests of both shareholders and creditors. This compromise solution ensures an adequate balance between flexibility and certainty and appears preferable to the proposed elimination of all financial assistance regulation.
{"title":"Rendering (Once More) the Financial Assistance Regime More Flexible","authors":"G. Strampelli","doi":"10.1515/ECFR-2012-0530","DOIUrl":"https://doi.org/10.1515/ECFR-2012-0530","url":null,"abstract":"Directive 2006/68/EC eliminated the ban on financial assistance imposed by article 23 of Directive 77/91/EEC. The new formulation of article 23 allows Member States to authorize public limited liability companies to undertake financial assistance transactions, provided that they provide adequate safeguards to the (minority) shareholders and to third parties. Various Member States have not exercised this option and many authors have criticised the text of article 23 of the second Directive. The conditions set forth in article 23 aim to protect minority rights and creditor rights are considered excessively rigid and create an obstacle to the effective simplification of the regulations governing financial assistance. This article suggests possible modifications to article 23 of the second directive which could render the financial assistance regime more flexible without prejudicing the interests of both shareholders and creditors. This compromise solution ensures an adequate balance between flexibility and certainty and appears preferable to the proposed elimination of all financial assistance regulation.","PeriodicalId":431428,"journal":{"name":"Corporate Law: LLCs","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122951947","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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