Llm 2008-2009 international regulation of companies 1



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(b) External Governance
(i) The Market in Corporate Control
This is the solution envisaged in the 1980’s by the Economic Analysis of Law School to the problem of management shirking and high agency costs or low efficiency in the use of assets.
Reading:


  1. R. Romano (ed), Foundations of Corporate Law (above) Chapter VI provides extracts summarising the theoretical background and some key US issues.

  2. C. Bradley , Corporate Control: Markets and Rules (1990) 53 MLR 170 - a UK treatment of this issue

  3. Klaus J. Hopt, European Takeover Regulation: Barriers to and Problems of Harmonising Takeover Law in the European Community Chapter 6 in Hopt and Wymeersch (eds) European Takeovers: Law and Practice, 1992, Butterworths (Short Term Loan) - gives a European perspective

  4. Katharina Pistor, “Corporate Control Transactions in Continental Europe” American Law Institute - American Bar Association Continuing Legal Education May 9-10, 2002 Ninth Annual Corporate Governance Institute at page 531 – from Westlaw - is a really useful outline of the problems of “transition” when systems such as the German one deal with changes of corporate control US/UK style.


Questions


  1. Is the market in corporate control an effective discipline?

  2. Compare the approach of the various jurisdictions to regulating takeovers - why is the regulation of defensive tactics an important issue?

For the Post Enron USA Changes see:


  1. E. Norman Veasey, (2003) “The Changing Role of Directors in Corporate Governance: corporate governance and ethics in the post-Enron Worldcom environment” 38 Wake Forest Law Review 839 – Westlaw – a useful summary from a practising lawyer’s viewpoint.


Also, for an academic perspective:



  1. William W. Bratton The New Corporate Social Responsibility Enron and the Dark Side of Shareholder Value (2002) 76 Tulane Law Review 1275

  2. John Armour and Joseph A McCahery (eds.), After Enron : improving corporate law and modernising securities regulation in Europe and the US. Pub. Oxford : Hart, 2006 - debates the issues arising for the Anglo-US system from the events surrounding Enron..

(ii) Institutional Investors


Try to read either:


  1. B.S. Black and J.C. Coffee, Hail Britannia?: Institutional Investor Behavior Under Limited Regulation (1994) 92 Michigan Law Review 1997 - draw out main features of UK system (especially the organisations of institutional investors) and conclusions on its operation.

or


  1. J.C. Coffee, Institutional investors as Corporate Monitors: Are Takeovers Obsolete?, Chapter 2 in J Farrar (ed) Takeovers, Institutional Investors and the Modernization of Corporate Laws, 1993, Oxford University Press, Auckland (Short Term Loan).

  2. T. Baums, Takeovers versus Institutions in Corporate Governance in Germany, Chapter 10 in D.D. Prentice and P.R.J. Holland (eds), Contemporary Issues in Corporate Governance, 1993, Clarendon Press, Oxford. (Available on Short Term Loan)..

And see:


  1. G.P. Stapledon, Institutional Shareholders and Corporate Governance Oxford ; Clarendon Press, 1996 Short Loan in Library


Questions


  1. How different are institutional investors in their behaviour from other shareholders?

  2. How are they themselves constrained by the regulations to which they are subjected and their legal obligations as fiduciaries?

  3. How different is the German system from those considered by Coffee?





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