Modern Company Law Research Articles

European Company Law Beyond the 2003 Action Plan

This paper describes the current state of implementation of the European Commission’s 2003 Action Plan on Modernising Company Law and Enhancing Corporate Governance, as well as how the new Commission revisited and adjusted the Action Plan after it entered office in November 2004. In addition, the paper sketches the outlook for the future development of European company law and corporate governance. It presents the methods and goals of the Commission and, to the extent possible, describes the contours of the concrete measures that are in the works.

Institutional Investors’ Mandatory Voting Disclosure: The Proposal of the European Commission against the Background of the US Experience

In its Action Plan ‘Modernising Company Law and Enhancing Corporate Governance in the European Union — A Plan to Move Forward’ of 2003, the European Commission proposed a mandatory disclosure of institutional investors’ voting behaviour with regard to their portfolio companies as a medium-term measure. This proposal was evidently inspired by SEC rules mandating voting disclosure of investment companies and investment advisers adopted in the same year.

The Place for Creditor Protection on the Agenda for Modernisation of Company Law in the European Union

The European Commission's Action Plan for Company Law, Modernising Company Law and Enhancing Corporate Governance in the European Union, signals a reorientation of the approach to company law at the European level, away from the protection of those who deal with companies and in favour of concentrating instead on business efficiency and competitiveness. This reorientation undermines the 2nd Company Law Directive, which is rooted in dated notions about company law's functions and assumptions about the need for safeguards against abuse. If the reorientation is genuine, it should provoke a more meaningful engagement with questions about company's law role in creditor protection and the regulatory strategies that can best be employed to discharge it.

The Place for Creditor Protection on the Agenda for Modernisation of Company Law in the European Union

The European Commission's Action Plan for Company Law, Modernising Company Law and Enhancing Corporate Governance in the European Union, signals a reorientation of the approach to company law at the European level, away from the protection of those who deal with companies and in favour of concentrating instead on business efficiency and competitiveness. This reorientation undermines the 2nd Company Law directive, which is rooted in dated notions about company law's functions and assumptions about the need for safeguards against abuse. If the reorientation is genuine, it should provoke a more meaningful engagement with questions about company's law role in creditor protection and the regulatory strategies that can best be employed to discharge it. Yet, despite the new emphasis on business facilitation, the Commission's current approach to reform is to use the 2nd Directive as the benchmark against which to assess the feasibility of an alternative regime that might be introduced on an optional basis for Member States. This approach is liable to create confusion and to lead to muddled policy choices. The failings of the 2nd Directive are certainly relevant to the debate on the extent to which, and how, creditors' interests should be addressed within a flexible company law framework for competitive business but the directive should not be presented as a touchstone against which the merits of alternative schemes are to be measured. This paper contributes to the debate on the recognition of creditors' interests in modern European company law in the following ways. It reviews important strands in the existing literature on the European legal capital doctrine and adds to the literature by examining the impact of recent trends in accounting, in particular the transition to International Financial Reporting Standards (IFRS), on the operation of the 2nd Directive. It suggests that accounting trends are set to undermine further the (already weak) arguments in favour of retaining the 2nd Directive. Whilst much of this paper questions the wisdom of the way in which the current proposal for an optional alternative to the 2nd directive has evolved, there is now considerable momentum behind that proposal. The paper therefore concludes by reviewing the substance of the proposal for a solvency-based alternative to the 2nd Directive and comments also on the associated proposal to adopt an EU-wide standard on wrongful trading liability.

German Company Law: Recent Developments and Future Challenges

The last decade has been a time of changes in all branches of German company law. Whilst the changes in the law of civil partnerships go to the very fundaments of what was a firm belief for a hundred years in national law, the future of the private limited company is increasingly determined by the competition of regulators in the European common market. The European dimension of modern company law making is even more pervasive in the law of stock corporations where growing convergence can be noted in regard to the national approaches of the European Member States towards internal controls. A common denominator for most of the changes in German company law is the partly court driven, partly legislature driven attempt of a better adjustment of investor and creditor protection to evolving business needs. Looking on the changes from a wider angle that includes capital markets, however, there are signals for a shifting in the traditional approach of German corporate governance towards an increasingly market driven system.

RECENT DEVELOPMENTS IN EUROPEAN COMPANY AND BUSINESS LAW

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[</span><span>Company Law, Business Law and Capital Markets Law in Europe are widely influenced by a multitude of regulations and directives as well as by the case-law of the European Court of Justice. There have already been nu- merous cases in which the ECJ gave fresh impetus to several developments which were slowed down before by specific statutory provisions of individual Member States. The most recent reason for a special focus on the up-to-date developments are the prevailing dynamics in EU-wide harmonization of law in general and in particular the Action Plan on “Modernising Company Law and Enhancing Corporate Governance in the EU” presented by the Euro- pean Commission.</span><span>] </span></p></div></div></div>

Wrongful Trading — A New European Model for Creditor Protection?

The European Commission’s May 2003 Action Plan ‘Modernising Company Law and Enhancing Corporate Governance in the European Union — A Plan to Move Forward’ includes a proposal for new legislation on wrongful trading with a view to strengthening the personal accountability of directors in the case of a company’s failure. The proposal builds on expert opinions that the existing law on wrongful trading in Great Britain is better capable of activating an early managerial response to a financial crisis than the German Insolvenzverschleppungshaftung (liability for delaying insolvency). This article challenges the alleged superiority of wrongful trading over Insolvenzverschleppungshaftung. It provides a detailed analysis of the case law under section 214 of the British Insolvency Act, which does not support the fundamental assumption underpinning the European endeavour, namely, that wrongful trading routinely imposes duties on the directors ahead of the onset of insolvency. Furthermore, the protection afforded to creditors under British law is less extensive than under German law as regards the amount of compensation for the creditors and, correspondingly, the financial risk incurred by the directors. Finally, the article looks at the special treatment of new creditors (Neuglaubiger) under German law, which has the advantage of giving creditors a strong incentive to pursue delinquent directors.

European Company Law Reform: Struggling for a More Liberal Approach

Requiring disclosure of company related information is state of the art in modern company and capital market law legislation. The core question that regulators on national and European levels do have to answer is how far such disclosure regulation should or even can replace mandatory substantive regulation.

Modernising Company Law

Modernising Company Law

“Modernising Company Law”: The Government's White Paper

The Modern Law ReviewVolume 66, Issue 3 p. 402-424 “Modernising Company Law”: The Government's White Paper Robert Goddard, Robert GoddardSearch for more papers by this author Robert Goddard, Robert GoddardSearch for more papers by this author First published: 21 May 2003 https://doi.org/10.1111/1468-2230.6603005Citations: 3Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat Citing Literature Volume66, Issue3May 2003Pages 402-424 RelatedInformation

Share Capital and Creditor Protection: Efficient Rules for a Modern Company Law

This article examines the case for rules of company law which regulate the raising and maintenance of share capital by companies. The enquiry has practical relevance because the content of company law is currently under review, and the rules relating to share capital have been singled out for particular attention. The existing rules, which apply generally, are commonly rationalised as a means of protecting corporate creditors. The analysis considers whether such rules can be understood as responses to failures in the markets for corporate credit. It suggests that whilst the current rules are unlikely, on the whole, to be justified in terms of efficiency, a case may be made for a framework within which companies may ‘opt in’ to customised restrictions on dealings in their share capital.

Modern Company Law for a Competitive Economy: the strategic framework

The author has made significant theoretical contributions to the literature of corporate governance, with works such as Corporate Governance, The Emperor’s Nightingale and Power and Accountability, and major practical interventions through his representational investing through his vehicle the Lens Fund and, more recently, Hermes Fund. He is a distinguished member of this journal’s Editorial Advisory Board. In this paper he responds to the recent UK Department of Trade and Industry consultation document on the future of company law in Britain. We believe that this contribution highlights some important aspects of the corporate governance debate, as well as arguing to some interesting possibilities for the UK. Although the paper stands on its own, references to ‘The Strategic Framework’ have been left in for scholars wishing to explore the arguments further.

Corporate Governance Report: Modern Company Law – for a competitive economy [Proposals for a fundamental review of UK company law] Department of Trade and Industry, London, March 1998

Corporate Governance: An International ReviewVolume 6, Issue 4 p. 278-283 Corporate Governance Report: Modern Company Law – for a competitive economy [Proposals for a fundamental review of UK company law] Department of Trade and Industry, London, March 1998 First published: 09 October 2008 https://doi.org/10.1111/1467-8683.00116Citations: 3AboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat Citing Literature Volume6, Issue4October 1998Pages 278-283 RelatedInformation

General Principles of Company Law for Transition Economies (English Version)

1. This document sets forth proposed principles for a legislation on stock companies that are considered to be appropriate for a country making the transition from a centrally planned economy to a market economy. For each, views on the topic are explained and alternative approaches considered. The approaches currently used in three OECD economies - France, Germany, and the United States - are summarised, as well as those existing in the Russian Federation, a transition economy that has recently adopted a modern company law.2. The focus of this exercise is company law, i.e. legislation that regulates commercial organizations with limited liability and investments represented by shares: corporations in the US, aktiengesellschaften in Germany, societes anonymes in France, joint stock companies in Russia. Although legislation on joint stock companies is the object of primary focus, all countries will need to have legislation providing for other types of business organisations. This will not be discussed here however, except when their provisions are relevant to the assumptions underlying this document. It is nevertheless important to note that the legislation should exhaustively list all available forms of legal entities, and that registration procedures should ensure a clear identification of every registered legal entity. This is mainly because improper formation of a legal entity might have dire consequences for both investors and third parties.3. The discussion of company law principles in this document is based on an assumption of a civil law environment, i.e. the existence of a general civil code. Excluded from consideration are laws regulating securities exchanges and the rules for the general offering of securities to the public. It should however be noted that sometimes the boundaries between company and securities laws are blurred. Some countries will choose to regulate certain issues related to publicly-quoted companies and their shareholders through securities regulation while others include such provisions in the general company legislation. The principles that are discussed here and address these grey-area issues can be applied in either context. Regulations of the general relationship between stock companies and their employees, and special rules designed to handle the specific issues that arise for financial and industrial groups are also not discussed here. Finally, while the document considers the civil remedies for violation of the company law, it does not address criminal law issues related to stock companies and their behaviour.Published in English and Russian in: 24 Journal of Corporation Law 190-293 (1999); Stanford Law School, John M. Olin Program in Law and Economics Working Paper No. 165; Columbia Law School, Center for Law and Economic Studies Working Paper No. 138 This paper is available in English (below) and Russian at: http://ssrn.com/abstract=127208

Modern Communications Methods and Company Law

Modern Communications Methods and Company Law

Introducing modern company law the life of a company

Introducing modern company law the life of a company

Gower: Still a Blueprint for Curriculum Reform in Company Law?

The publication of the first edition of Gower's Principles of Modern Company Law in 1954 has been recognized as a milestone in the development of company law textbooks. It has been described as 'a blueprint for curriculum reform',' and acknowledged for its contribution to the development of company law as an academic subject.2 In an area of study previously dominated by practitioners' texts,3 Gower sought to present a work which would primarily be of use to students, would be written in a lucid and easily understandable style, and would 'emphasize the principles of common law and equity on which this branch of the law is still based, rather than the statutory provisions which supplement and amend them in detail'.4

Teaching modern company law — the pint pot

Teaching modern company law — the pint pot

The Conceptual Foundations of Modern Company Law

tion in society. It is, therefore, surprising that it has given so little attention to company law, given that incorporated companies now the dominant legal organisational form of capital are a major site of those relations. To date the only alternatives to traditional, expository approaches to company law have been broadly contextualist in nature.' These have undoubtedly widened our knowledge and understanding of the subject, providing useful analyses of its relevance and technical rules. But being essentially atheoretical, contextualism has accepted the company as a given legal object. It has consequently offered little, if anything, by way of analysis or explanation of the key concepts which constitute the basic structures of modern company law. We hope that this paper will lay the foundations for a more critical approach to company law. Limitations of space force us to concentrate largely on the central concept of separate personality, but we believe that our analysis opens up further areas for study, both within company law itself and beyond. The crux of our argument is that company law, and in particular the joint stock company as an economic organisational form,2 can be properly understood only in the context of an analysis of the various forms taken by capital. And, more specifically, that it is the emergence of the joint stock company share as a new form of fictitious capital that underlies the doctrine of separate personality and, therefore, the basic conceptual structure of contemporary company law.3

REVIEWS

Crime, Law and the Scholars: A History of Scholarship in American Criminal Law. By Gerhard O. W. Mueller.What's Wrong With The Law? Edited by Michael Zander.Tangling With Law: Reforms in Legal Process. By F. A. R. Bennion.The Charter Controversy in the City of London, 1660–1688, and its Consequences. By Jennifer Levin.The Popular Movement for Law Reform 1640–1660. By Donald Veall.Delictual Liability and the Conflict of Laws. By Otto Kahn‐Freund.The Principles of Modern Company Law. Third edition. By Professor L. C. B. Gower, A Law Commissioner. Co‐editors: K. W. Wedderburn, Cassel Professor of Commercial Law in the University of London, and O. Weaver and A. E. W. Park, Barristers‐at‐Law.The Criminal Responsibility of Corporations in English Law. By Dr. L. H. Leigh.The Company: Law, Structure and Reform in Eleven Countries. Edited by Charles de Hoghton.The Legitimacy of the Business Corporation in the Law of the United States 1780–1970. By James Willard Hurst.Discretionary Justice: A Preliminary Inquiry. By Kenneth Culp Davis.Congress v. The Supreme Court. By Raoul Berger.The Costs of Accidents: A Legal and Economic Analysis. By Guido Calabresi.The Law of Tort in Local Government. Second Edition by Mary Bell Cairns, ll.m., ph.d.Labour Law. By Charles D. Drake, m.a., ll.b., of the Middle Temple, Barrister‐at‐Law.The Divorce Reform Act 1969. By Bernard Passingham, o.b.e., t.d.