Pub Date : 2022-07-03DOI: 10.1080/14735970.2023.2206212
I. Frame
ABSTRACT The distress wreaked on small businesses by the Royal Bank of Scotland’s turnaround division, the Global Restructuring Group, is one of the most egregious examples of bank misconduct in recent decades. Such misconduct invites reflection on the role of commercial banks in the creation and use of money. To what ends and by what means do commercial banks perform this role? This article considers ends in the sense of whose interests banks ought to serve; and it considers means in the sense of the allocation of decision-making authority. It then turns to the drama of RBS after 2008 to document how allocations of decision-making authority by corporate law and secured transactions law benefited short-term financial interests to the detriment of RBS’s small business customers. It concludes by suggesting an alternative distribution of decision-making authority to counteract such short-term financial interests.
{"title":"The ends and means of banking: the Royal Bank of Scotland after the 2008 crisis","authors":"I. Frame","doi":"10.1080/14735970.2023.2206212","DOIUrl":"https://doi.org/10.1080/14735970.2023.2206212","url":null,"abstract":"ABSTRACT The distress wreaked on small businesses by the Royal Bank of Scotland’s turnaround division, the Global Restructuring Group, is one of the most egregious examples of bank misconduct in recent decades. Such misconduct invites reflection on the role of commercial banks in the creation and use of money. To what ends and by what means do commercial banks perform this role? This article considers ends in the sense of whose interests banks ought to serve; and it considers means in the sense of the allocation of decision-making authority. It then turns to the drama of RBS after 2008 to document how allocations of decision-making authority by corporate law and secured transactions law benefited short-term financial interests to the detriment of RBS’s small business customers. It concludes by suggesting an alternative distribution of decision-making authority to counteract such short-term financial interests.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"22 1","pages":"931 - 970"},"PeriodicalIF":1.1,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42410586","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-03DOI: 10.1080/14735970.2022.2152181
S. Alamer
ABSTRACT The main role of the sharia supervisory board (SSB) is to provide sharia assurance to Islamic financial institutions (IFIs) and other stakeholders regarding sharia-compliance matters. This role is very essential in sharia governance. Therefore, the SSB’s position in the structure of IFIs needs to be examined to analyse how sharia interest could be assured for its stakeholders. This assurance requires a clear accountability framework to achieve this goal more effectively. This article discusses two important elements of accountability: why is accountability important in sharia governance? And who is accountable to ensure sharia-compliance? The latter touches on the SSB and analyses its position and eligibility within the accountability framework and proposes sharia firms as an alternative tool.
{"title":"Accountability in sharia governance: is it time for sharia firms?","authors":"S. Alamer","doi":"10.1080/14735970.2022.2152181","DOIUrl":"https://doi.org/10.1080/14735970.2022.2152181","url":null,"abstract":"ABSTRACT The main role of the sharia supervisory board (SSB) is to provide sharia assurance to Islamic financial institutions (IFIs) and other stakeholders regarding sharia-compliance matters. This role is very essential in sharia governance. Therefore, the SSB’s position in the structure of IFIs needs to be examined to analyse how sharia interest could be assured for its stakeholders. This assurance requires a clear accountability framework to achieve this goal more effectively. This article discusses two important elements of accountability: why is accountability important in sharia governance? And who is accountable to ensure sharia-compliance? The latter touches on the SSB and analyses its position and eligibility within the accountability framework and proposes sharia firms as an alternative tool.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"22 1","pages":"749 - 781"},"PeriodicalIF":1.1,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48914771","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-03DOI: 10.1080/14735970.2022.2127476
J. Quinn
{"title":"Reconstructing the Corporation: From Shareholder Primacy to Shared Governance","authors":"J. Quinn","doi":"10.1080/14735970.2022.2127476","DOIUrl":"https://doi.org/10.1080/14735970.2022.2127476","url":null,"abstract":"","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"22 1","pages":"1075 - 1078"},"PeriodicalIF":1.1,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42441877","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-03DOI: 10.1080/14735970.2022.2107092
Evariest Callens
ABSTRACT In line with international policy initiatives after the 2008 financial crisis, the EU co-legislators have sought to mitigate the potential destructive effects of derivative contracts through a host of far-reaching legislative interventions (e.g. mandatory usage of central counterparties (CCPs)). To determine the scope of application of these legislative initiatives, the definition of derivatives is of pivotal importance. Although a strand in legal scholarship has aimed to map the conceptual properties of derivatives, the derivatives definitions that have been conceived by the EU co-legislators to demarcate the scope of recent legislative interventions have received virtually no attention. This article seeks to fill this gap. Through a combination of conceptual and regulatory analysis, the article develops two new arguments. First, it argues that derivatives definitions in EU law do not identify any distinctive conceptual properties of derivatives and, instead, only provide a circular description of what derivatives may be. Secondly, it submits that this conceptually unsatisfactory approach is symptomatic for a more fundamental deficit in the conceptual underpinnings of derivatives. By exploring the relation between the derivatives definitions in EU law and the conceptual properties of derivatives, this article seeks to uncover some of the conceptual impurities in the premises on which the major overhaul of EU derivatives legislation has been built.
{"title":"Derivative contracts in EU law: never mind the definition?","authors":"Evariest Callens","doi":"10.1080/14735970.2022.2107092","DOIUrl":"https://doi.org/10.1080/14735970.2022.2107092","url":null,"abstract":"ABSTRACT In line with international policy initiatives after the 2008 financial crisis, the EU co-legislators have sought to mitigate the potential destructive effects of derivative contracts through a host of far-reaching legislative interventions (e.g. mandatory usage of central counterparties (CCPs)). To determine the scope of application of these legislative initiatives, the definition of derivatives is of pivotal importance. Although a strand in legal scholarship has aimed to map the conceptual properties of derivatives, the derivatives definitions that have been conceived by the EU co-legislators to demarcate the scope of recent legislative interventions have received virtually no attention. This article seeks to fill this gap. Through a combination of conceptual and regulatory analysis, the article develops two new arguments. First, it argues that derivatives definitions in EU law do not identify any distinctive conceptual properties of derivatives and, instead, only provide a circular description of what derivatives may be. Secondly, it submits that this conceptually unsatisfactory approach is symptomatic for a more fundamental deficit in the conceptual underpinnings of derivatives. By exploring the relation between the derivatives definitions in EU law and the conceptual properties of derivatives, this article seeks to uncover some of the conceptual impurities in the premises on which the major overhaul of EU derivatives legislation has been built.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"22 1","pages":"641 - 675"},"PeriodicalIF":1.1,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47981496","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-03DOI: 10.1080/14735970.2023.2215138
Angharad James
ABSTRACT The inclusion of a statutory moratorium has been a consistent feature of UK insolvency regimes, most recently with the introduction of a restructuring moratorium by the Corporate Insolvency and Governance Act 2020. Despite the overarching intentions of promoting the rescue of a company, statutory moratoria can cause significant hindrances for those stakeholders seeking to exercise their proprietary or contractual rights such as retention of title claimants and other interested creditors. This article explores some of the practical repercussions of statutory moratoria under the current insolvency regime including the moratorium in administration under Schedule B1 of the Insolvency Act 1986 and the potential impact of the self-standing moratorium introduced by the Corporate Insolvency and Governance Act 2020.
{"title":"Curtailment of individual rights by statutory moratoria","authors":"Angharad James","doi":"10.1080/14735970.2023.2215138","DOIUrl":"https://doi.org/10.1080/14735970.2023.2215138","url":null,"abstract":"ABSTRACT The inclusion of a statutory moratorium has been a consistent feature of UK insolvency regimes, most recently with the introduction of a restructuring moratorium by the Corporate Insolvency and Governance Act 2020. Despite the overarching intentions of promoting the rescue of a company, statutory moratoria can cause significant hindrances for those stakeholders seeking to exercise their proprietary or contractual rights such as retention of title claimants and other interested creditors. This article explores some of the practical repercussions of statutory moratoria under the current insolvency regime including the moratorium in administration under Schedule B1 of the Insolvency Act 1986 and the potential impact of the self-standing moratorium introduced by the Corporate Insolvency and Governance Act 2020.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"22 1","pages":"1017 - 1044"},"PeriodicalIF":1.1,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49470688","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-03DOI: 10.1080/14735970.2022.2157469
Lydia Tsioli
ABSTRACT This article examines how the different jurisdictional treatment of rescue financing in restructuring proceedings may affect the fundamental decision as to how a debtor's estate is deployed. This question is explored through a detailed examination of two very different models of rescue financing – the US statutory model and the UK market-based model. The article finds that the US model may lead to ‘filtering inefficiency', namely a result of the reorganisation process that is not the most value-maximising for the debtor in question. The article then turns to the English model and finds that it does not have prospect of ‘performing’ significantly better compared to the American one on a filtering efficiency basis. In light of these findings, the article articulates a proposal for reform of the UK model in particular and also explains the relationship with intercreditor agreements as a common restructuring technique in the UK.
{"title":"Rescue financing under a ‘viability spotlight’","authors":"Lydia Tsioli","doi":"10.1080/14735970.2022.2157469","DOIUrl":"https://doi.org/10.1080/14735970.2022.2157469","url":null,"abstract":"ABSTRACT This article examines how the different jurisdictional treatment of rescue financing in restructuring proceedings may affect the fundamental decision as to how a debtor's estate is deployed. This question is explored through a detailed examination of two very different models of rescue financing – the US statutory model and the UK market-based model. The article finds that the US model may lead to ‘filtering inefficiency', namely a result of the reorganisation process that is not the most value-maximising for the debtor in question. The article then turns to the English model and finds that it does not have prospect of ‘performing’ significantly better compared to the American one on a filtering efficiency basis. In light of these findings, the article articulates a proposal for reform of the UK model in particular and also explains the relationship with intercreditor agreements as a common restructuring technique in the UK.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"22 1","pages":"843 - 885"},"PeriodicalIF":1.1,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43149576","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-02-07DOI: 10.1080/14735970.2021.2016147
R. Mccorquodale, Stuart Neely
ABSTRACT This article provides a comparative perspective on the issue of directors’ liability for actions by a company which causes or contributes to human rights impacts. International, European and national regulatory developments in business and human rights are influencing company law. This article will consider directors’ duties in relation to the meaning of ‘the best interests of a company’ and how the expectations on directors from various stakeholders are changing due to legislation, court decisions and practice. Based on this, there is an analysis of the link between directors’ duties and human rights due diligence, and about access to remedy for the victims of actions arising from the acts or omissions of directors, including any decisions made by directors without proper regard for the human rights of those affected by the company’s activities. It considers what might be the personal liabilities of directors in this area and possible ways forward, including in relation to probable EU regulation on this area.
{"title":"Directors duties and human rights impacts: a comparative approach","authors":"R. Mccorquodale, Stuart Neely","doi":"10.1080/14735970.2021.2016147","DOIUrl":"https://doi.org/10.1080/14735970.2021.2016147","url":null,"abstract":"ABSTRACT This article provides a comparative perspective on the issue of directors’ liability for actions by a company which causes or contributes to human rights impacts. International, European and national regulatory developments in business and human rights are influencing company law. This article will consider directors’ duties in relation to the meaning of ‘the best interests of a company’ and how the expectations on directors from various stakeholders are changing due to legislation, court decisions and practice. Based on this, there is an analysis of the link between directors’ duties and human rights due diligence, and about access to remedy for the victims of actions arising from the acts or omissions of directors, including any decisions made by directors without proper regard for the human rights of those affected by the company’s activities. It considers what might be the personal liabilities of directors in this area and possible ways forward, including in relation to probable EU regulation on this area.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"22 1","pages":"605 - 639"},"PeriodicalIF":1.1,"publicationDate":"2022-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43757792","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-02DOI: 10.1080/14735970.2022.2054165
A. Keller, A. Kokkinis
ABSTRACT This article critically interrogates the experience of the implementation and enforcement of the Senior Managers and Certification Regime (SMCR) in light of interdisciplinary literature on organisational culture. We demonstrate that the SMCR brings the promise of enhancing effective regulatory supervision of firm culture, supporting the incipient professionalisation of senior manager functions in the financial sector and discerning tangible aspects of artefacts and behaviours that constitute the external layer of good culture. However, we argue that, apart from the more obvious risk of too little enforcement or enforcement targeted at misconduct in the private sphere, there is a risk that a perception of rigidity in enforcement may lead to the development of a counterproductive culture, especially if firms unduly rely upon tick-box quantitative measurement approaches to culture management, and that sound culture may be simplistically equated to compliance with the SMCR. This necessitates a careful and nuanced approach to supervision.
{"title":"The senior managers and certification regime in financial firms: an organisational culture analysis","authors":"A. Keller, A. Kokkinis","doi":"10.1080/14735970.2022.2054165","DOIUrl":"https://doi.org/10.1080/14735970.2022.2054165","url":null,"abstract":"ABSTRACT This article critically interrogates the experience of the implementation and enforcement of the Senior Managers and Certification Regime (SMCR) in light of interdisciplinary literature on organisational culture. We demonstrate that the SMCR brings the promise of enhancing effective regulatory supervision of firm culture, supporting the incipient professionalisation of senior manager functions in the financial sector and discerning tangible aspects of artefacts and behaviours that constitute the external layer of good culture. However, we argue that, apart from the more obvious risk of too little enforcement or enforcement targeted at misconduct in the private sphere, there is a risk that a perception of rigidity in enforcement may lead to the development of a counterproductive culture, especially if firms unduly rely upon tick-box quantitative measurement approaches to culture management, and that sound culture may be simplistically equated to compliance with the SMCR. This necessitates a careful and nuanced approach to supervision.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"22 1","pages":"299 - 334"},"PeriodicalIF":1.1,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44838091","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-02DOI: 10.1080/14735970.2022.2054166
Timothy Bowley, Jennifer G. Hill
ABSTRACT Information asymmetry between shareholders and corporate managers can subvert contemporary calls for increased institutional investor oversight. Information asymmetry can also arise between minority shareholders and controlling shareholders. This article examines the trajectory of shareholder inspection rights in Australia. It evaluates the effectiveness of an important shift in the 1980s from the narrow and prescriptive U.K. common law inspection right to a statutory regime, which confers broad discretion on the courts to decide whether inspection is appropriate. The article also explores the tension between inspection rights (which provide individual shareholders with access to non-public company information) and modern securities laws which promote market integrity by preventing selective disclosure of material information by listed entities. The Australian experience provides international law makers and researchers with important insights into the efficacy and implications of different models of regulating shareholder inspection rights.
{"title":"Shareholder inspection rights: lessons from Australia","authors":"Timothy Bowley, Jennifer G. Hill","doi":"10.1080/14735970.2022.2054166","DOIUrl":"https://doi.org/10.1080/14735970.2022.2054166","url":null,"abstract":"ABSTRACT\u0000 Information asymmetry between shareholders and corporate managers can subvert contemporary calls for increased institutional investor oversight. Information asymmetry can also arise between minority shareholders and controlling shareholders. This article examines the trajectory of shareholder inspection rights in Australia. It evaluates the effectiveness of an important shift in the 1980s from the narrow and prescriptive U.K. common law inspection right to a statutory regime, which confers broad discretion on the courts to decide whether inspection is appropriate. The article also explores the tension between inspection rights (which provide individual shareholders with access to non-public company information) and modern securities laws which promote market integrity by preventing selective disclosure of material information by listed entities. The Australian experience provides international law makers and researchers with important insights into the efficacy and implications of different models of regulating shareholder inspection rights.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"22 1","pages":"335 - 364"},"PeriodicalIF":1.1,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41501561","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-02DOI: 10.1080/14735970.2022.2036413
Bobby V. Reddy
ABSTRACT Special Purpose Acquisition Companies (SPACs) are non-operating entities seeking public listings with the sole intention of subsequently acquiring other companies. Once a target has been acquired, the SPAC de-lists and the newly enlarged group reapplies for listing as a, now publicly-owned, operating entity, thereby streamlining the process to IPO for the target. SPACs have surged in the US recently, with SPAC sponsors making concerted efforts to attract not only institutional, but also retail, investors. With a view to invigorating SPAC activity in the UK, new regulations have been introduced that will enable UK SPAC sponsors to mimic the structure of US SPACs. However, in this article, it will be discussed that unlike the more benign nature of traditional UK SPACs, the typical US-style SPAC is simply a financial instrument for institutional investors built upon the investment of retail investors, and promoting such an evolution in the UK may be misguided.
{"title":"Warning the UK on Special Purpose Acquisition Companies (SPACs): great for Wall Street but a nightmare on Main Street","authors":"Bobby V. Reddy","doi":"10.1080/14735970.2022.2036413","DOIUrl":"https://doi.org/10.1080/14735970.2022.2036413","url":null,"abstract":"ABSTRACT Special Purpose Acquisition Companies (SPACs) are non-operating entities seeking public listings with the sole intention of subsequently acquiring other companies. Once a target has been acquired, the SPAC de-lists and the newly enlarged group reapplies for listing as a, now publicly-owned, operating entity, thereby streamlining the process to IPO for the target. SPACs have surged in the US recently, with SPAC sponsors making concerted efforts to attract not only institutional, but also retail, investors. With a view to invigorating SPAC activity in the UK, new regulations have been introduced that will enable UK SPAC sponsors to mimic the structure of US SPACs. However, in this article, it will be discussed that unlike the more benign nature of traditional UK SPACs, the typical US-style SPAC is simply a financial instrument for institutional investors built upon the investment of retail investors, and promoting such an evolution in the UK may be misguided.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"22 1","pages":"1 - 44"},"PeriodicalIF":1.1,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47569873","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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