Reforming Company And Takeover Law In Europe,9780199273805

Reforming Company And Takeover Law In Europe

by ; ; ;
ISBN13: 9780199273805
ISBN10: 0199273804
Format: Hardcover
Pub. Date: 2004-08-12
Publisher(s): Oxford University Press
List Price: $287.99

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Summary

This book examines reforms in company and takeover law, crucial to modern business and economics. The new European 13th directive on takeovers and its 'break-through' rule are discussed, as is the controversial level playing field for takeover activities all over Europe and from the United States. The volume provides comprehensive commentary and full text of the European Commission's new company law action plan. Issues including corporate disclosure, remuneration of directors, personal liability of board members, auditors, and conflicts of interest are also examined.

Author Biography


Guido A. Ferrarini is Professor of Law at the University of Genoa and Director of the Centre for Law and Finance. Klaus J. Hopt is Professor of Law and Director of the Max Planck Institute for Foreign Private and Private International Law, Hamburg. Jaap Winter is partner at the Dutch law firm De Brauw Blackstone Westbroek and Professor of International Company Law at the Erasmus University, Rotterdam. Eddy Wymeersch is Chairman of the Banking Finance and Insurance Commission, Belgium; cochair of the CESR-ECB, working on clearing and settlement; member of the Committees of European Securities Regulators (CESR), and Part time Professor of Commercial Law, University of Ghent.

Table of Contents

The Contributors xix
Part I: A Framework for a Modern Company and Takeover Law in Europe: Common Regulatory Issues
1(182)
The Need for a Regulatory Framework
3(92)
EU Company Law at the Cross-Roads
3(18)
Jaap Winter
Introduction
3(1)
The European Company Statute
4(3)
The European Court of Justice
7(3)
Capital Market Law and Company Law
10(3)
Parenthesis: Competition and Harmonization
13(1)
A Modern Regulatory Framework for Company Law in Europe
14(3)
The Takeover Bids Directive
17(2)
Outlook
19(2)
An Agenda for Reform: Company and Takeover Law in Europe
21(30)
Gerard Hertig
Joseph A. McCahery
Introduction
21(2)
Reflections on Regulatory Arbitrage and Competition
23(6)
The Proposed EU Company and Takeover Law Reforms
29(9)
An Alternative Approach to Corporate Law Reform
38(7)
Conclusion
45(1)
References
46(5)
Trusteeship and Conflicts of Interest in Corporate, Banking and Agency Law: Toward Common Legal Principles for Intermediaries in the Modern Service-Oriented Society
51(38)
Klaus J. Hopt
Introduction
52(1)
Duties of Loyalty of Corporate Organs Under Special Contracts and of Professional Intermediaries: A Survey
53(9)
Sources, Differences, and Common Features of the Duties of Loyalty of Intermediaries
62(5)
Common Legal Principles for Treating Conflicts of Interest
67(13)
Prevention of Conflicts of Interest, Sanctions, and Enforcement
80(6)
Summary
86(3)
A Modern Regulatory Framework for Company and Takeover Law in Europe
89(6)
Michel Prada
Regulation of Corporate Governance, in Particular Disclosure
95(50)
Disclosure and Corporate Governance: An Overview Essay
95(20)
Reinier Kraakman
Introduction
95(2)
The Governance Functions of Disclosure
97(2)
Why Make Disclosure Mandatory?
99(2)
What Companies Are Subject to Mandatory Disclosure?
101(5)
The Enforcement of Disclosure Rules
106(4)
The Limits of Mandatory Disclosure
110(5)
Disclosing Disclosure: Europe's Winding Road to Competitive Standards of Publication of Company-Related Information
115(30)
Hanno Merkt
Introduction
115(2)
Fundamentals of Disclosure
117(22)
General Principles of Disclosure
139(4)
Sanctioning of Disclosure Duties
143(1)
Conclusion
144(1)
Modern Company Law-Making
145(38)
About Techniques of Regulating Companies in the European Union
145(38)
Eddy Wymeersch
Regulation of Companies and Their Conduct
145(15)
The Regulation of Companies at the EU Level
160(9)
Which Way Forward?
169(13)
Conclusion
182(1)
Part II: Corporate Governance: Inside the Corporation
183(356)
Board Structure, in Particular the Role of Non-Executive and Supervisory Directors
185(82)
Post-Enron Developments in the United Kingdom
185(40)
Paul Davies
The Enron Issues and the British Response
185(3)
General Points
188(5)
Board Structure
193(13)
Auditor Independence
206(5)
Executive Remuneration
211(7)
Analysts' Conflicts of Interest
218(2)
By Way of Conclusion: The Non-Barking Dog
220(5)
Corporate Scandals Across the Globe: Regulating the Role of the Director
225(42)
Jennifer Hill
Introduction
225(2)
A Tale of Two Australian Corporate Collapses
227(5)
Board Structure and Composition as a Contemporary Corporate Governance Tool
232(21)
Director and Officer Liability as an Accountability Mechanism
253(6)
Executive Remuneration
259(7)
Conclusion
266(1)
The Remuneration of Executive and Non-Executive Directors
267(106)
Executive Remuneration and Corporate Governance in the EU: Convergence, Divergence, and Reform Perspectives
267(80)
Guido Ferrarini
Niamh Moloney
Theoretical Foundations
268(52)
Comparative Overview
320(20)
Reform Perspectives
340(7)
Accounting for Share-Based Remuneration
347(26)
Kimberley Crook
Introduction
347(1)
Overview of the Accounting Issues
348(4)
U.S. Accounting Requirements
352(2)
IASB Project
354(4)
Concluding Comments
358(1)
Appendix: IASB -- Share-Based Payment
358(15)
The Responsibility of the Management and of the Board and Its Enforcement
373(44)
The Responsibility of the Management and Its Enforcement
373(44)
Holger Fleischer
Introduction
373(1)
Fiduciary Duties in Different Legal Systems
374(19)
Duties to Creditors and the Responsibility for Wrongful Trading
393(10)
Management Responsibility for Financial Statements
403(5)
Directors' Disqualification
408(9)
The Role of the Shareholder
417(38)
The Role of the Shareholder in Internal Corporate Governance: Shareholder Information, Communication and Decision-Making
417(38)
Eilis Ferran
Introduction
418(2)
The Development of European Company Law
420(2)
Shareholder Information
422(14)
Beyond Disclosure: Active Exercise of Internal Control by Shareholders
436(18)
A Concluding Observation
454(1)
The Auditors
455(84)
Gatekeeper Failure and Reform: The Challenge of Fashioning Relevant Reforms
455(52)
John C. Coffee, Jr
Introduction
455(5)
Gatekeepers: Past and Present
460(20)
The Near Future of Gatekeepers: Sarbanes-Oxley and the Looming Litigation Crisis
480(9)
The Future Gatekeeper: Remedies for Gatekeeper Failure
489(16)
Conclusion
505(2)
Corporate Governance and Auditor Independence: The Battle of the Private Versus the Public Interest
507(32)
Werner F. Ebke
Introduction
507(7)
The Role and Position of the Independent Auditor
514(3)
Auditor Independence
517(19)
Public Oversight
536(2)
Conclusions
538(1)
Part III: Corporate Governance: The Market for Corporate Control and the Level Playing Field
539(258)
American Experience and EU Perspectives
541(136)
An American Perspective on Anti-Takeover Laws in the EU: The German Example
541(20)
Jeffrey N. Gordon
Introduction
542(3)
Germany and the `Level Playing Field': The Problem of Economic Nationalism
545(3)
The Different Impact of Anti-Takeover Measures, Germany vs US
548(8)
Prospects for a Revised 13th Directive?
556(2)
Conclusion
558(3)
Why Continental European Takeover Law Matters
561(14)
Allen Ferrell
Why Worry About Continental European Takeover Regulation?
561(2)
Interaction Between Technical and Structural Barriers to Takeovers
563(3)
Standing the Test of Time? Two Case Studies
566(8)
Conclusion
574(1)
The Economics of the Proposed European Takeover Directive
575(72)
Joseph A. McCahery
Luc Renneboog
Peer Ritter
Sascha Haller
Introduction
576(2)
Corporate Governance and the Cost of Capital
578(6)
The Pattern of Ownership and Control in Europe
584(5)
Explanations for Differences in Ownership and Control Concentration Across Companies and Countries
589(10)
Takeovers in the European Union and the U.S: Evolution
599(6)
The Determinants of Bidder and Target Returns in the Economic Literature
605(8)
Takeover Regulation in the European Union
613(3)
The Market for Corporate Control and Tender Offers
616(15)
Board Neutrality
631(4)
Squeeze-Out
635(9)
The Level Playing Field Considered and Conclusions
644(3)
Reciprocity in Takeovers
647(30)
Marco Becht
Introduction
647(4)
Models of Corporate Control
651(2)
Achieving Reciprocity
653(6)
Reciprocity in Takeovers as a Policy Objective
659(3)
Conclusion
662(3)
Figures
665(12)
The Proposed `Break-Through' Rule
677(60)
Ownership, Takeovers and EU Law: How Contestable Should EU Corporations Be?
677(34)
John C. Coates IV
The DTB and the BTR
677(3)
The High-Level Goals of the DTB
680(2)
Doubts About the BTR
682(8)
Why Do Takeover-Proof Firms Exist?
690(12)
Summary
702(1)
Implications
703(2)
Alternatives to the BTR: Mandatory Re-Openings
705(2)
Conclusion
707(2)
Appendix
709(2)
Make It or Break It: The Break-Through Rule as a Break-Through for the European Takeover Directive?
711(26)
Peter O. Mulbert
Introduction
711(3)
The Break-Through Concept of the High-Level Group
714(7)
Shareholder Decision-Making
721(5)
Proportionality
726(8)
Concluding Remarks
734(3)
Mandatory Bids, Squeeze-Outs and Similar Transactions
737(60)
Mandatory Bids, Squeeze-Out, Sell-Out and the Dynamics of the Tender Offer Process
737(30)
Mike Burkart
Fausto Panunzi
Introduction
737(7)
Economics of the Tender Offer Process
744(4)
Mandatory Bid Rule
748(5)
Squeeze-Out Right
753(3)
Sell-Out Right
756(2)
Controlling Owners and Mandatory Bid Rule
758(4)
Conclusions
762(1)
References
763(4)
The Mandatory Bid Rule in the Proposed EC Takeover Directive: Harmonization as Rent-Seeking?
767(30)
Luca Enriques
Introduction
768(1)
The Group's Proposals on Mandatory Bid Price, Squeeze-Out and Sell-Out Rights
769(4)
The Proposal's Provisions on Mandatory Bids and Squeeze-Out and Sell-Out Rights: The Devil Is in the Details
773(11)
The Uneasy Case for the Proposed EC Mandatory Bid Rule
784(10)
Conclusions: A Lawyers' and Regulators' Plot?
794(3)
Annex 1: Commission of the European Communities Modernising Company Law and Enhancing Corporate Governance in the European Union -- A Plan to Move Forward (21 May 2003) 797(28)
Annex 2: Report of the High Level Group of Company Law Experts on Issues Related to Takeover Bids (10 January 2002) 825(100)
Annex 3: Report of the High Level Group of Company Law Experts on a Modern Regulatory Framework for Company Law in Europe (4 November 2002) 925(166)
Cases 1091(6)
Index 1097

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