Pub Date : 2020-01-09DOI: 10.1080/14735970.2019.1701174
Emily Lee, E. Ip
ABSTRACT The promulgation of the Judicial Insolvency Network (JIN) Guidelines by the Supreme Court of Singapore in 2017 has triggered innovative cross-border insolvency developments in the Asia-Pacific. It is intriguing that the Guidelines were conceived not by Singaporean judges alone, but jointly with a transnational network of bankruptcy judges. This article undertakes the original contribution of examining the Guidelines in light of the overall need for participating jurisdictions to craft a transnational insolvency framework. It uses Hong Kong as a test case to illustrate trends of likely future convergence.
{"title":"Judicial diplomacy in the Asia-Pacific: theory and evidence from the Singapore-initiated transnational judicial insolvency network","authors":"Emily Lee, E. Ip","doi":"10.1080/14735970.2019.1701174","DOIUrl":"https://doi.org/10.1080/14735970.2019.1701174","url":null,"abstract":"ABSTRACT The promulgation of the Judicial Insolvency Network (JIN) Guidelines by the Supreme Court of Singapore in 2017 has triggered innovative cross-border insolvency developments in the Asia-Pacific. It is intriguing that the Guidelines were conceived not by Singaporean judges alone, but jointly with a transnational network of bankruptcy judges. This article undertakes the original contribution of examining the Guidelines in light of the overall need for participating jurisdictions to craft a transnational insolvency framework. It uses Hong Kong as a test case to illustrate trends of likely future convergence.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"20 1","pages":"389 - 420"},"PeriodicalIF":1.1,"publicationDate":"2020-01-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14735970.2019.1701174","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41320172","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 : 2020-01-02DOI: 10.1080/14735970.2019.1631551
K. Akintola, D. Milman
ABSTRACT In this article, we explore diverse forms of receivership in order to demonstrate the extent of the continued or potential utility of this institution in UK Corporate Law. We do this by placing the historical origins of receivership alongside its contemporary manifestations in both solvent and insolvent scenarios. In so doing, we present a nuanced picture of receivership as a process that, in specie and – by reference to outcomes in other corporate insolvency law procedures – in substance, continues to provide protection for creditors (and other stakeholders) in modern commercial transactions.
{"title":"The rise, fall and potential for a rebirth of receivership in UK corporate law","authors":"K. Akintola, D. Milman","doi":"10.1080/14735970.2019.1631551","DOIUrl":"https://doi.org/10.1080/14735970.2019.1631551","url":null,"abstract":"ABSTRACT In this article, we explore diverse forms of receivership in order to demonstrate the extent of the continued or potential utility of this institution in UK Corporate Law. We do this by placing the historical origins of receivership alongside its contemporary manifestations in both solvent and insolvent scenarios. In so doing, we present a nuanced picture of receivership as a process that, in specie and – by reference to outcomes in other corporate insolvency law procedures – in substance, continues to provide protection for creditors (and other stakeholders) in modern commercial transactions.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"20 1","pages":"119 - 99"},"PeriodicalIF":1.1,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14735970.2019.1631551","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46408798","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 : 2020-01-02DOI: 10.1080/14735970.2019.1647018
R. Parry, Y. Long
ABSTRACT China has long been under external pressure to develop a market-based approach to bankruptcies and reduce state involvement in such cases. The enactment of the Enterprise Bankruptcy Law 2006 was an important first step in this regard but laws are insufficient in themselves to bring about such an approach and this Act has given rise to a very low number of cases, attributed in part to ongoing state influence. This article examines the reasons for the law’s limited impact, paying particular attention to the role of the state, which appears to be changing.
{"title":"China’s enterprise bankruptcy law, building an infrastructure towards a market-based approach","authors":"R. Parry, Y. Long","doi":"10.1080/14735970.2019.1647018","DOIUrl":"https://doi.org/10.1080/14735970.2019.1647018","url":null,"abstract":"ABSTRACT China has long been under external pressure to develop a market-based approach to bankruptcies and reduce state involvement in such cases. The enactment of the Enterprise Bankruptcy Law 2006 was an important first step in this regard but laws are insufficient in themselves to bring about such an approach and this Act has given rise to a very low number of cases, attributed in part to ongoing state influence. This article examines the reasons for the law’s limited impact, paying particular attention to the role of the state, which appears to be changing.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"20 1","pages":"157 - 178"},"PeriodicalIF":1.1,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14735970.2019.1647018","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46428285","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 : 2020-01-02DOI: 10.1080/14735970.2019.1648109
J. Quinn
ABSTRACT Crystallisation is the name given to the conversion of a floating charge into a fixed charge. While much has been written on how charges are classified as fixed or floating and on the theoretical nature of the floating charge, crystallisation is, by comparison, less developed. This article offers three main contributions. First, it draws a clear distinction between two types of crystallisation: automatic and express. Second, it applies the theoretical literature on floating charges to crystallisation and examines the different meanings crystallisation takes under these theoretical frameworks. Finally, it makes an original argument on the effectiveness of express crystallisation clauses. The claim is that because a crystallised floating charge establishes the same proprietary interest as a fixed charge ab initio, the legal criteria necessary to create a fixed charge should also be necessary for the triggering of an express crystallisation clause to be effective in crystallising a charge.
{"title":"The crystallisation of floating charges: rethinking the conceptual framework","authors":"J. Quinn","doi":"10.1080/14735970.2019.1648109","DOIUrl":"https://doi.org/10.1080/14735970.2019.1648109","url":null,"abstract":"ABSTRACT Crystallisation is the name given to the conversion of a floating charge into a fixed charge. While much has been written on how charges are classified as fixed or floating and on the theoretical nature of the floating charge, crystallisation is, by comparison, less developed. This article offers three main contributions. First, it draws a clear distinction between two types of crystallisation: automatic and express. Second, it applies the theoretical literature on floating charges to crystallisation and examines the different meanings crystallisation takes under these theoretical frameworks. Finally, it makes an original argument on the effectiveness of express crystallisation clauses. The claim is that because a crystallised floating charge establishes the same proprietary interest as a fixed charge ab initio, the legal criteria necessary to create a fixed charge should also be necessary for the triggering of an express crystallisation clause to be effective in crystallising a charge.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"20 1","pages":"179 - 198"},"PeriodicalIF":1.1,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14735970.2019.1648109","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44540595","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 : 2020-01-02DOI: 10.1080/14735970.2019.1654805
L. Macgregor
ABSTRACT This article analyses the separate legal personality of partnerships, drawing on Hansmann and Kraakman's identification of the attributes shared by businesses possessing legal personality. Their work provides a jurisdictionally-neutral standard of comparison applied here to the Scottish partnership which, unusually amongst jurisdictions influenced by the common law tradition, possesses separate legal personality. The historical development of Scottish partnerships is explored, from its origins as a Roman-inspired type of societas, a contract centred on the rights and duties of the partners inter se, towards a modern, business able to contract with third parties in its own name. Scots law supports Hansmann and Kraakman's view that attributes of legal personality are secured by organisational law rather than contract law. Disagreeing with them, however, the author uses the Scottish experience to illustrate that lack of perpetual succession is not, as they argue, a ‘mere inconvenience which can easily overcome with contractual workarounds’, but rather an essential requirement of a workable partnership with legal personality.
{"title":"Partnerships and legal personality: cautionary tales from Scotland","authors":"L. Macgregor","doi":"10.1080/14735970.2019.1654805","DOIUrl":"https://doi.org/10.1080/14735970.2019.1654805","url":null,"abstract":"ABSTRACT This article analyses the separate legal personality of partnerships, drawing on Hansmann and Kraakman's identification of the attributes shared by businesses possessing legal personality. Their work provides a jurisdictionally-neutral standard of comparison applied here to the Scottish partnership which, unusually amongst jurisdictions influenced by the common law tradition, possesses separate legal personality. The historical development of Scottish partnerships is explored, from its origins as a Roman-inspired type of societas, a contract centred on the rights and duties of the partners inter se, towards a modern, business able to contract with third parties in its own name. Scots law supports Hansmann and Kraakman's view that attributes of legal personality are secured by organisational law rather than contract law. Disagreeing with them, however, the author uses the Scottish experience to illustrate that lack of perpetual succession is not, as they argue, a ‘mere inconvenience which can easily overcome with contractual workarounds’, but rather an essential requirement of a workable partnership with legal personality.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"20 1","pages":"237 - 262"},"PeriodicalIF":1.1,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14735970.2019.1654805","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48296494","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 : 2020-01-02DOI: 10.1080/14735970.2019.1615165
S. Frisby
ABSTRACT This article considers the recent proposals for the reform of corporate rehabilitation procedures. It examines the impetus for reform, the main features of the proposals and the underlying corporate insolvency landscape in the UK. The article attempts to determine whether the proposals are sufficiently robust in terms of balancing the interests of corporate creditors and the potential for corporate rescue, and how corporate creditors might respond if they consider that their rights are unduly or unfairly relegated. It also questions the utility of the proposed reforms for companies of all sizes, and whether there are omissions in terms of realising their objectives.
{"title":"Of rights and rescue: a curious confluence?","authors":"S. Frisby","doi":"10.1080/14735970.2019.1615165","DOIUrl":"https://doi.org/10.1080/14735970.2019.1615165","url":null,"abstract":"ABSTRACT This article considers the recent proposals for the reform of corporate rehabilitation procedures. It examines the impetus for reform, the main features of the proposals and the underlying corporate insolvency landscape in the UK. The article attempts to determine whether the proposals are sufficiently robust in terms of balancing the interests of corporate creditors and the potential for corporate rescue, and how corporate creditors might respond if they consider that their rights are unduly or unfairly relegated. It also questions the utility of the proposed reforms for companies of all sizes, and whether there are omissions in terms of realising their objectives.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"20 1","pages":"39 - 72"},"PeriodicalIF":1.1,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14735970.2019.1615165","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48976790","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 : 2019-12-19DOI: 10.1080/14735970.2019.1695516
Andrew Keay, Joan Loughrey, Terry McNulty, Francis Okanigbuan, Abigail Stewart
ABSTRACT
It is often assumed that judges are reluctant to review directors’ business judgments, which contributes to a lack of director accountability, particularly in large companies. This claim has never been systematically interrogated. This paper therefore analyses English and Welsh cases to ascertain whether judges do review and impose liability for directors’ judgments, whether this has altered from the mid-nineteenth century until the present, or varies by cause of action, and what types of company or claimant are involved. It finds that challenges to business judgment have been successful over the whole time period, with a marked increase in legal liability since 2007. This cannot be linked to changes in substantive law, but probably a greater willingness by claimants in insolvent companies to mount challenges to business judgment. Nevertheless liability levels remain low, and largely confined to private companies.
{"title":"Business judgment and director accountability: a study of case-law over time","authors":"Andrew Keay, Joan Loughrey, Terry McNulty, Francis Okanigbuan, Abigail Stewart","doi":"10.1080/14735970.2019.1695516","DOIUrl":"https://doi.org/10.1080/14735970.2019.1695516","url":null,"abstract":"<p><b>ABSTRACT</b></p> <p>It is often assumed that judges are reluctant to review directors’ business judgments, which contributes to a lack of director accountability, particularly in large companies. This claim has never been systematically interrogated. This paper therefore analyses English and Welsh cases to ascertain whether judges do review and impose liability for directors’ judgments, whether this has altered from the mid-nineteenth century until the present, or varies by cause of action, and what types of company or claimant are involved. It finds that challenges to business judgment have been successful over the whole time period, with a marked increase in legal liability since 2007. This cannot be linked to changes in substantive law, but probably a greater willingness by claimants in insolvent companies to mount challenges to business judgment. Nevertheless liability levels remain low, and largely confined to private companies.</p>","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"191 1","pages":""},"PeriodicalIF":1.1,"publicationDate":"2019-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138536204","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}
A. Keay, J. Loughrey, T. McNulty, Francis A. Okanigbuan, A. Stewart
ABSTRACT It is often assumed that judges are reluctant to review directors’ business judgments, which contributes to a lack of director accountability, particularly in large companies. This claim has never been systematically interrogated. This paper therefore analyses English and Welsh cases to ascertain whether judges do review and impose liability for directors’ judgments, whether this has altered from the mid-nineteenth century until the present, or varies by cause of action, and what types of company or claimant are involved. It finds that challenges to business judgment have been successful over the whole time period, with a marked increase in legal liability since 2007. This cannot be linked to changes in substantive law, but probably a greater willingness by claimants in insolvent companies to mount challenges to business judgment. Nevertheless liability levels remain low, and largely confined to private companies.
{"title":"Business judgment and director accountability: a study of case-law over time","authors":"A. Keay, J. Loughrey, T. McNulty, Francis A. Okanigbuan, A. Stewart","doi":"10.2139/ssrn.3352479","DOIUrl":"https://doi.org/10.2139/ssrn.3352479","url":null,"abstract":"ABSTRACT It is often assumed that judges are reluctant to review directors’ business judgments, which contributes to a lack of director accountability, particularly in large companies. This claim has never been systematically interrogated. This paper therefore analyses English and Welsh cases to ascertain whether judges do review and impose liability for directors’ judgments, whether this has altered from the mid-nineteenth century until the present, or varies by cause of action, and what types of company or claimant are involved. It finds that challenges to business judgment have been successful over the whole time period, with a marked increase in legal liability since 2007. This cannot be linked to changes in substantive law, but probably a greater willingness by claimants in insolvent companies to mount challenges to business judgment. Nevertheless liability levels remain low, and largely confined to private companies.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"20 1","pages":"359 - 387"},"PeriodicalIF":1.1,"publicationDate":"2019-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42085337","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 : 2019-10-29DOI: 10.1080/14735970.2019.1679418
Michael Galanis
ABSTRACT Business organisation still reflects and reproduces the dated idea of ‘economic growth as progress' irrespective of its social hazards. Recalibrating the grounding of business organisation's legitimacy requires radical legal reform in order to accommodate the relegation of growth as a lower order objective. However, this article shows that the normative debate in corporate law scholarship is unable to resolve the legitimacy problem of business organisation and ultimately reflects and reproduces the ideal of ‘growth as progress’. The problem is corporate law per se. Thus, the article argues that, even if these normative difficulties could be surpassed, instituting a new legitimacy for business organisation through corporate law reform - the conventional remedy - is, at best, practically impossible or, worse, harmful, because it is bound to follow conformist logic. Consequently, it is preferable to abandon corporate law reform completely and policy should focus instead on enabling the radical organisational practice already occurring in the social margin.
{"title":"Growth and the lost legitimacy of business organisation: time to abandon corporate law reform","authors":"Michael Galanis","doi":"10.1080/14735970.2019.1679418","DOIUrl":"https://doi.org/10.1080/14735970.2019.1679418","url":null,"abstract":"ABSTRACT Business organisation still reflects and reproduces the dated idea of ‘economic growth as progress' irrespective of its social hazards. Recalibrating the grounding of business organisation's legitimacy requires radical legal reform in order to accommodate the relegation of growth as a lower order objective. However, this article shows that the normative debate in corporate law scholarship is unable to resolve the legitimacy problem of business organisation and ultimately reflects and reproduces the ideal of ‘growth as progress’. The problem is corporate law per se. Thus, the article argues that, even if these normative difficulties could be surpassed, instituting a new legitimacy for business organisation through corporate law reform - the conventional remedy - is, at best, practically impossible or, worse, harmful, because it is bound to follow conformist logic. Consequently, it is preferable to abandon corporate law reform completely and policy should focus instead on enabling the radical organisational practice already occurring in the social margin.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"20 1","pages":"291 - 325"},"PeriodicalIF":1.1,"publicationDate":"2019-10-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14735970.2019.1679418","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48205306","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 : 2019-10-16DOI: 10.1080/14735970.2019.1667744
A. Engert, Tim Florstedt
ABSTRACT The amended EU Shareholder Rights Directive introduces a comprehensive regime of ex ante review for potentially conflicted transactions between listed companies and ‘related parties’ (major shareholders, managers, and others). If considered material, these transactions will have to be evaluated in advance by the board of directors, the shareholders' meeting, or the stock market. The most important choice to be made by member states in implementing the directive concerns the definition of ‘materiality’. We use hand-collected data based on IAS 24 reporting of related party transactions to estimate the number of German companies affected by quantitative materiality thresholds based on accounting assets, sales, market capitalisation, and other financials. One important recommendation derived from the analysis is to use more than one single quantitative test to define material related party transactions.
{"title":"Which related party transactions should be subject to ex ante review? Evidence from Germany","authors":"A. Engert, Tim Florstedt","doi":"10.1080/14735970.2019.1667744","DOIUrl":"https://doi.org/10.1080/14735970.2019.1667744","url":null,"abstract":"ABSTRACT The amended EU Shareholder Rights Directive introduces a comprehensive regime of ex ante review for potentially conflicted transactions between listed companies and ‘related parties’ (major shareholders, managers, and others). If considered material, these transactions will have to be evaluated in advance by the board of directors, the shareholders' meeting, or the stock market. The most important choice to be made by member states in implementing the directive concerns the definition of ‘materiality’. We use hand-collected data based on IAS 24 reporting of related party transactions to estimate the number of German companies affected by quantitative materiality thresholds based on accounting assets, sales, market capitalisation, and other financials. One important recommendation derived from the analysis is to use more than one single quantitative test to define material related party transactions.","PeriodicalId":44517,"journal":{"name":"Journal of Corporate Law Studies","volume":"20 1","pages":"263 - 290"},"PeriodicalIF":1.1,"publicationDate":"2019-10-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14735970.2019.1667744","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"59839504","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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