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The market reaction to legal shocks and their antidotes : lessons from the sovereign debt market
(2008)
This Article examines the market reaction to a series of legal events concerning the judicial interpretation of the pari passu clause in sovereign debt instruments. More generally, the Article provides insights into the reactions of investors (predominantly financial institutions), issuers (sovereigns), and those who draft bond covenants (lawyers), to unanticipated changes in the judicial interpretation of certain covenant terms.
On 27 and 28 September 2007, a commission formed on the initiative of the authors held its first meeting in Aarhus, Denmark to deliberate on its goal of drafting a "European Model Company Law Act" (EMCLA). This project, outlined in the following pages, aims neither to force a mandatory harmonization of national company law nor to create a further, European corporate form. The goal is rather to draft model rules for a corporation that national legislatures would be free to adopt in whole or in part. Thus, the project is thought as an alternative and supplement to the existing EU instruments for the convergence of company law. The present EU instruments, their prerequisites and limits will be discussed in more detail in Part II, below. Part III will examine the US experience with such "model acts" in the area of company law. Part IV will then conclude by discussing several topics concerning the content of an EMCLA, introducing the members of the EMCLA Working Group, and explaining the Group's preliminary working plan.
This paper identifies some common errors that occur in comparative law, offers some guidelines to help avoid such errors, and provides a framework for entering into studies of the company laws of three major jurisdictions. The first section illustrates why a conscious approach to comparative company law is useful. Part I discusses some of the problems that can arise in comparative law and offers a few points of caution that can be useful for practical, theoretical and legislative comparative law. Part II discusses some relatively famous examples of comparative analysis gone astray in order to demonstrate the utility of heeding the outlined points of caution. The second section offers a framework for approaching comparative company law. Part III provides an example of using functional definition to demarcate the topic "company law", offering an "effects" test to determine whether a given provision of law should be considered as functionally part of the rules that govern the core characteristics of companies. It does this by presenting the relevant company law statutes and related topical laws of Germany, the United Kingdom and the United States, using Delaware as a proxy for the 50 states. On the basis of this definition, Part IV analyzes the system of legal functions that comprises "company law" in the United States and the European Union. It selects as the predominant factor for consideration the jurisdictions, sub-jurisdictions and rule-making entities that have legislative or rule-making competence in the relevant territorial unit, analyzes the extent of their power, presents the type of law (rules) they enact (issue), and discusses the concrete manner in which the laws and rules of the jurisdictions and sub-jurisdictions can legally interact. Part V looks at the way these jurisdictions do interact on the temporal axis of history, that is, their actual influence on each other, which in the relevant jurisdictions currently takes the form of regulatory competition and legislative harmonization. The method of the approach outlined in this paper borrows much from system theory. The analysis attempts to be detailed without losing track of the overall jurisdictional framework in the countries studied.
Arbitration international
(2000)
Volume 16 (2000) Issue 1 Consent to Arbitration Through Agreement to Printed Contracts: The Continental Experience [Houtte] (133 KB) The Enforcement of International Commercial Arbitration Agreements in Canada [Branson] (249 KB) The Vicissitudes of Transnational Commercial Arbitration and the Lex Mercatoria: A View from the Periphery [Nottage] (232 KB) The 'Y2K Problem' and Arbitration: The Answer to the Myth [Ylts] (158 KB) Book Notes [Goodliffe] (80 KB) Issue 2 Lloyd George, Lenin and Cannibals: The Harriman Arbitration [Veeder] (191 KB) The Courts of England and Wales, Commercial Education and the Changing Business of the City of London [Thomas] (144 KB) The Australian International Arbitration Act, the Fiction of Severability and Claims for Restitution [Baron] (242 KB) Are Alternative Dispute Resolution Methods Superior to Litigation in Resolving Disputes in International Commerce? [Wang] (153 KB) Notes (26 KB) Bias for Judges- and Arbitrators? (41 KB) The Challenge of Unopposed Arbitrations (57 KB) Alternative Dispute Resolution in Catalonia (99 KB) Book Notes (88 KB) Book Reviews [Azzali, Born, Freedberg, Hascher, Jan Van Den Berg, Veeder] (117 KB) Issue 3 The Spirit of Arbitration: The Tenth Annual Goff Lecture [Nariman] (137 KB) The Development of Arbitration in International Financial Transactions [Horn] (129 KB) Leaving Colonial Arbitration Laws Behind: Southeast Asia's Move into the International Arbitration Arena: The 2000 Gillis Wetter Prizewinner [Schaefer] (262 KB) Parallel Actions Pending Before an Arbitral Tribunal and a State Court: The Solution Under Swiss Law [Perret] (90 KB) Barristers, Independence and Disclosure Revisited [Kendall] (73 KB) Less is More: Directing Arbitration Procedures [Marriott] (36 KB) European Public Policy and the Austrian Supreme Court [Liebscher] (85 KB) Issue 4 Consolidated Index - Volume 16 (103 KB) Dr Heribert Golsong 23 October 1927 ? 2 April 2000 Obituary [Turck] (26 KB) International Commercial Dispute Resolution: The Challenge of the Twenty-First Century [Hunter] (108 KB) Arbitration under the North American Free Trade Agreement [Alvarez] (268 KB) Special Section Commentary on the Hubco Judgment [Majeed] (59 KB) Hubco Judgment Transcript in the Supreme Court of Pakistan (Appellate Jurisdiction) [Majeed] (187 KB) The America's Cup Arbitration Panel [Tompkins] (51 KB) New Zealand Rugby Union: Disciplinary Processes [Howman] (95 KB) Australian Rules Football: Disciplinary Processes [Nolan] (92 KB) Australian Rugby League: Player Misconduct - The Objectives of a Penal Code [Gray] (45 KB) Book Notes (71 KB) Volume 17 (2001) Issue 1 Power of Arbitrators to Fill Gaps and Revise Contracts to Make Sense [Berger] (140 KB) The Role of the Lex Loci Arbitri in International Commercial Arbitration [Goode] (161 KB) Obtaining Documents from Adverse Parties in International Arbitration [Webster] (141 KB) Transnational Law: A Legal System or a Method of Decision Making? [Gaillard] (105 KB) Arbitrability under the New York Convention: The Lex Fori Revisited [Arfazadeh] (136 KB) Cepani (Belgian Centre for Arbitration and Mediation) Modifies its Rules (85 KB) Towards the Harmonization of International Arbitration Rules: Comparative Analysis of the Rules of the ICC, AAA, LCIA and CIETAC (75 KB) Book Notes (42 KB) Recht und Praxis des Schiedsverfahrens [Sandrock] (35 KB) Diary of Arbitration Conferences 2001 (70 KB) Issue 2 The New, New Lex Mercatoria, or, Back to the Future [Fortier] (62 KB) Arbitration and Brazil: A Foreign Perspective [Blackaby] (96 KB) Obtaining Evidence from Third Parties in International Arbitration [Webster] (141 KB) The Dismantling of a German Champion: Katrin Krabbe and her Ordeal with the German Track and Field Association and the IAAF [Faylor] (70 KB) Formula 1 Racing and Arbitration: The FIA Tailor-made System for Fast-Track Dispute Resolution [Kaufmann-Kohler, Peter] (135 KB) Judgment between Thomas Dobbie Thomson Walkinshaw & ors. and Pedro Paulo Diniz (136 KB) The Third Man: The 1999 Act Sets Back Separability? [Diamond] (57 KB) Case Note on Tononoka Steels Limited v. Eastern and Southern Africa Trade and Development Bank [Muyanja] (38 KB) Book Notes (74 KB) Issue 3 Reflections on the International Arbitrator's Duty to Apply the Law The 2000 Freshfields Lecture [Mayer] (90 KB) A Global' Arbitration Decided on the Basis of the UNIDROIT Principles: In re Andersen Consulting Business Unit Member Firms v. Arthur Andersen Business Unit Member Firms and Andersen Worldwide Société Coopérative [Bonell] (92 KB) Arbitration's Discontents: Of Elephants and Pornography [Park] (87 KB) Enforceability of Agreed Awards in Foreign Jurisdictions [Lörcher] (83 KB) A Real Danger of Confusion? The English Law Relating to Bias in Arbitrators [Eastwood] (182 KB) Notes: Domestic Courts' Obligation to Refer Parties to Arbitration [Cobb] (101 KB) Notes: French and US Courts Define Limits of Sovereign Immunity in Execution and Enforcement of Arbitral Awards [Turck] (113 KB) Book Notes (34 KB) Issue 4 Introduction [Paulsson] (28 KB) Arbitration Reform in Sweden [Hobér] (234 KB) The Arbitration Agreement under the Swedish 1999 Arbitration Act and the German 1998 Arbitration Act [Berger] (85 KB) Formation of the Arbitral Tribunal [Chang] (68 KB) The Arbitral Award: Some Comments on the 1999 Swedish Arbitration Act [Komarov] (51 KB) Sweden's Review of Arbitral Awards: a US Perspective [Aksen] (42 KB) The Swedish Arbitration Act of 1999 (English) [Hobér] (91 KB) The Swedish Arbitration Act of 1999 (Swedish) [Hobér] (80 KB) Book Notes (53 KB) Consolidated Index ? Volume 17 (38 KB) List of Contributors ? Volumes 1?17 (33 KB) Volume 18 (2002) Issue 1 When Should an Arbitrator Join Cases? [Platte] (104 KB) Confidentiality in International Commercial Arbitration [Trakman] (121 KB) A Thing Unknown to Law': the Strange Case of the Admiralty Transport Arbitration Board [Foxton] (193 KB) Witness Conferencing' [Peter] (73 KB) Bridging the Common Law-Civil Law Divide in Arbitration [Elsing, Townsend] (48 KB) Lex Mercatoria Online: the CENTRAL Transnational Law Database at www.tldb.de [Berger] (86 KB) Book Notes (37 KB) Book Review: Die ICC Schiedsgerichtsordnung in der Praxis, by Erich Schäfer, Herman Verbist and Christophe Imhoos [Kreindler] (32 KB) Issue 2 Islamic Law and the Iran-United States Claims Tribunal: The Primacy of International Law over Municipal Law [Fry] (133 KB) Terms of Reference and Negative Jurisdictional Decisions: A Lesson from Australia [Greenberg, Secomb] (79 KB) The Principle of Lis Pendens in International Arbitration: The Swiss Decision in Fomento v. Colon [Oetiker] (65 KB) The Fourth Arbitrator? The Role of Secretaries to Tribunals in International Arbitration [Partasides] (107 KB) American Werewolves in London [Dasteel, Jacobs] (121 KB) The 1920-1923 North Sakhalin Concession Agreement [Veeder] (117 KB) International Commercial Arbitration: A Canadian Perspective [Finn, Thomson] (89 KB) Book Notes (40 KB) Issue 3 The Rt Hon Sir Michael Kerr ? In Memoriam [Phillips] (45 KB) Introduction to Articles ? Dallas Workshop on Aribtrating with Sovereigns [Donovan] (22 KB) International Arbitration and Sovereignty [Reisman] (59 KB) Commentary [Berman] (40 KB) Commentary [Gaillard] (40 KB) Introduction to the Mock Case [Beechey] (21 KB) Scene I: US Power and Local Power Discuss Filing a Request for Arbitration with ICSID (43 KB) Commentary: Drafting Arbitration Clauses in Contracts Involving Sovereigns [Freyer] (36 KB) Commentary: The Role of Administering Organizations [Peterson] (22 KB) Scene II: ICSID Registers the Request (43 KB) Commentary: ICSID Jurisdiction and the Request for Arbitration [Tawil] (22 KB) Commentary: Investment and Dispute Resolution [Bergsten] (25 KB) Scene III: Oral Proceedings (89 KB) The Iran?United States Claims Tribunal and Disputes Involving Sovereigns [Briner] (39 KB) Commentary: ICSID Proceedings in the Absence of a Bilateral Investment Treaty [Legum] (32 KB) Commentary: Investment Disputes Under NAFTA [Aguilar Alvarez] (23 KB) Scene IV: Oral Proceedings Regarding the State Court Injunction (73 KB) Commentary: ICSID Tribunals and Injunctions by State Courts [Friedland] (33 KB) Commentary: Practical Options when Faced with an Injunction Against Arbitration [Scott] (64 KB) Scene V: Panel Deliberations (22 KB) Commentary: The Broader Context [McLachlan] (37 KB) Book Notes (70 KB) Issue 4 The Lex Mercatoria in Practice: The Experience of the Iran?United States Claims Tribunal [Brunetti] (193 KB) The Englishman's Word as the Foreigner's Bond [Taylor] (123 KB) A Remarkable Example of Promotion of Arbitration and ADR: The Resolution of Disputes in the Belgian Newly Liberalized Energy Sector [Block, Haverbeke] (80 KB) The Production of Documents in International Arbitration ? A Commentary on Article 3 of the New IBA Rules of Evidence [Raeschke-Kessler] (118 KB) The 2001 Goff Lecture [Veeder] (128 KB) Will the United Kingdom's Human Rights Act Further Protect Parties to Arbitration Proceedings? [Kasolowsky, Robinson] (91 KB) ADR and Commercial Disputes by Russell Caller (ed.). [Wackie Eysten] (70 KB) Consolidated Index (46 KB) List of Contributors (33 KB)
This paper will sketch out some of the developments in European company law as seen from the current moment, which might be referred to as post- 2003 Action Plan, and from my purely personal viewpoint. I will thus restrict myself to presenting the current and expected legislative projects of the EU, with particular focus on the plans and activities of the Commission, and for the moment bracket out both a number of important and interesting decisions of the European Court of Justice and the debates among European legal scholars.
In this paper, I tackle the question whether one share - one vote should become a European law rule. I examine, first of all, the economic theory concerning one share - one vote and its optimality, and the law and economics literature on dual class recapitalizations and other deviations from one share - one vote. I also consider the agency costs of deviations from one share - one vote and examine whether they justify regulation. I subsequently analyze the rules implementing the one share - one vote standard in the US and Europe. In particular, I analyze the self-regulatory rules of US exchanges, the relevant provisions of the European Takeover Directive (including the well known break-through rule), and the European Court of Justice's position as to golden shares (which also are deviations from the one share - one vote standard). I conclude that one share - one vote is not justified by economic efficiency, as also confirmed by comparative law. Also the European breakthrough rule, which ultimately strikes down all deviations from one share - one vote, does not appear to be well grounded. Only transparency rules appear to be justified at EU level as disclosure of ownership and voting structures serves a pricing and governance function, while harmonisation of the relevant rules reduces transaction costs in integrated markets.
The article connects two strands of the recent sociolegal debate: (1) the empirical discovery of new forms of spontaneous law in die Course of globalization, and (2) the emergence of deconstructive theories of law that undermine the law's hierarchy. The article puts forward the thesis that law's hierarchy has successfully resisted all old and new attempts at its deconstruction; it breaks, however, under the pressures of globalization that produced a global law without the state, as self-created law of global society that has no institutionalized support whatsoever in international poliucs and public international law. Consequently, the article criticizes deconstructive theories for their lack of autological analysis. These theories do not take into account the historical condicions of deconstruction. Accordingly, deconstructive analysis of law would have to look for new legal distinctions that are plausible under the new condicions of a doubly fragmented global society. The article sketches the contours of an emerging polycontextural law.